PEOPLE v. ELIZALDE

Appellant, Javier Gomez, Petition for Review

Cal.January 22, 2014

$215260 Court of Appeal No. A132071 IN THE SUPREME COURTOF STATE OF CALIFOR} PEOPLE OF THE STATE OF CALIFORNIA,) No. Plaintiff and Respondent,) ) V. ) ) GAMALIEL ELIZALDE,etal., ) SUPREME COURT ) FILED Defendants and Appellants.) ) JAN 22 2014 Frank A. McGuire Clerk Deputy PETITION OF JAVIER GOMEZ FOR REVIEW TO EXHAUST STATE REMEDIES After a Decision by the Court of Appeal First Appellate District, Division Two Filed November19, 2013 John Ward Attorney at Law 584 Castro Street, #802 SanFrancisco, California 94114 (415) 255-4996 State Bar No. 102449 Counsel for Petitioner by Appointment of the Court of Appeal underthe First District Appellate Project Independent Case Program. TOPICAL INDEX Page TABLE OF AUTHORITIES ........ 0... cece cee ee eens I PETITION FOR REVIEW ...... 0... 0c ceecee tenet eens -l- ISSUES PRESENTED FOR REVIEW FOR EXHAUSTION PURPOSES ... -2- STATEMENT OF THE CASE AND STATEMENTOF FACTS ........... -2- FACTUAL AND LEGAL BASES FOR THE CLAIMS............-...4- -2- I. APPELLANT WAS DEPRIVEDOF A FAIR TRIAL IN VIOLATION OF THE SIXTH AMENDMENT BY THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY THAT IF THEY FOUND THAT THERE WAS GROSS NEGLIGENCE IN THE TREATMENT OF THE DECEDENT’S GUNSHOT WOUNDS, THIS COULD BE A SUPERVENING CAUSE RELIEVING APPELLANT OF CULPABILITY FOR SECOND DEGREE MURDER......... -2- IJ. THEREWAS INSUFFICIENT EVIDENCE OFACONSPIRACYINVOLVING APPELLANTTO SATISFY THE DUEPROCESS CLAUSEOF THE FOURTEENTH AMENDMENT. .............-.- 0002 0c es -3- CONCLUSION on...tence nen enee eee -4- TABLE OF AUTHORITIES Page Jackson v. Virginia (1979) 443 U.S. 307 2... cece e ee -4- Kerr v. Beck (1971) 5 Cal.3d 321 20...cece -3- People v. Sakarias (2000) 22 Cal.4th 599 0... occ eee eee eee -3- Strickland v. Washington (1984) 466 U.S. 668 ............ cee eae -3- Cal. Rules of Court, rule 8.500 0.0.00... ccc cece eee -1- Cal. Rules of Court, rule 8.508 .... 0.0... ccc cc cc cee eee ee -1- ~IN THE SUPREME COURTOF STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA,) ) Plaintiff and Respondent, ) ) v. ) ) GAMALIEL ELIZALDE,etal., ) Defendants and Appellants. ) ) PETITION FOR REVIEW TO: THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURTOF THE STATE OF CALIFORNIA: Petitioner, JAVIER GOMEZ,by andthrough counsel, herebypetitions for review, pursuant to California Rules of Court, rule 8.508, following a decision ofthe Court ofAppeal for the First Appellate District, Division Two, filed November 19, 2013.' The case does not provide groundsforfiling a petition for review pursuant to rule 8.500(b) and is filed to exhaust state remedies for purposes of complying with federal habeas corpus procedural requirements. 1 The unpublished opinion of the Court of Appeal is attachedto this petition as Appendix A. -|- ISSUES PRESENTED FOR REVIEW FOR EXHAUSTION PURPOSES I. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL IN VIOLATION OF THE SIXTH AMENDMENTBYTHE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY THAT IF THEY FOUND THAT THERE WAS GROSS NEGLIGENCE IN THE TREATMENT OF THE DECEDENT’S GUNSHOT WOUNDS, THIS COULD BE A SUPERVENING CAUSE RELIEVING APPELLANT OF CULPABILITY FOR SECOND DEGREE MURDER. I. WHETHER THERE WAS SUFFICIENT EVIDENCE OF A CONSPIRACY INVOLVING APPELLANT TO SATISFY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. STATEMENT OF THE CASE AND STATEMENT OF FACTS The Court is respectfully referred to the opinion ofthe Court ofAppeal, whichis attached hereto as Exhibit A. FACTUAL AND LEGALBASES FOR THE CLAIMS I. APPELLANTWAS DEPRIVED OF AFAIRTRIAL IN VIOLATION OF THE SIXTH AMENDMENTBYTHE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY THAT IF THEY FOUND THAT THERE WAS GROSS NEGLIGENCE IN THE TREATMENT OF THE DECEDENT’S GUNSHOT WOUNDS, THIS COULD BE A SUPERVENING CAUSE RELIEVING APPELLANT OF CULPABILITY FOR SECOND DEGREE MURDER. The Court ofAppeal foundnoerrorin the trial court’s failure to instruct such an instruction was a “pinpoint” instruction and, moreover, there was no factual basis for giving it. (Slip. op. at pp. 22-23.) However, as appellant argued below, there was testimony from the expert witness, Dr. Ogun, that Rico Macintosh’s death was caused by blood clots in his lungs andthatit is common knowledge among physicians that such clotting is not uncommon after woundsto the legs (where Mr. Macintosh was shot). (26RT 4482, 4499.) As appellant argued below,the jury could have inferred from this testimony, -2- as a matter ofcommonsense,thatit was fatally negligent to let Mr. Macintosh go home,as the doctors did, before making sure that the danger had passed. (See, e.g., Kerr v. Beck (1971) 5 Cal.3d 321, 324 [res ipsa loquitur applies wherethe occurrenceofthe injury is ofsuch a naturethat it can be said, in the light of past experience, that it probably was the result ofnegligence andthis determination can be made in reliance on common knowledge and expert testimony]. See also Petition for Rehearing.) Even if the omitted instruction was a “pinpoint” instruction under California law, federal due process requires that the jury be given instructions that went to the heart of the defense. (See People v. Sakarias (2000) 22 Cal.4th 599, 625 [failure to instruct on element federal constitutional error]. Alternatively, it was prejudicial ineffective assistance of counsel for defense counsel not to have requested an appropriate instruction on supervening cause. (Strickland v. Washington (1984) 466 U.S. 668, 690-692.) Il. THERE WAS INSUFFICIENT EVIDENCE OF A CONSPIRACY INVOLVING APPELLANT TO SATISFY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. The Court of Appeal held that there was sufficient evidence of a conspiracy in this case. (Slip op. at pp. 60-61.) However,there is no evidence that appellant Gomez waspart of that conspiracy. Mr. Gomez acknowledged in his statement to the police that the Surenos (with whom he wasaffiliated) were at war with the Nortenos and that he shot Mr. Macintosh to advance himself with his gang and earn respect. (1Supp CT 91.) However, that aim was a generalized purpose of the VFL Sureno gang. As the gang expert testified, Nortenos and Surenos were in a perpetual state of war and killing each other was always an aim of each respective gang. (See 31RT 5441- -3- 5442.) This is not the sameas evidenceofa specific agreement amongthe co- defendants to commit murder and assault with a deadly weapon andcertainly not evidencethat appellant made such an agreement. Accordingly, this Court should grant review on the issue and reverse the conspiracy conviction as to appellant. (Jackson v. Virginia (1979) 443 U.S. 307, 321.) CONCLUSION For all the foregoing reasons, the Court of Appeal’s affirmance of petitioner’s convictions was an unreasonable application of federal constitutional law as interpreted by the Supreme Court and this Court should grant review andreverse. Respectfully submitted, s/John Ward Counsel for Petitioner CERTIFICATE OF RULE8.360(b) COMPLIANCE I certify under penalty ofperjury that pursuant to California Rules of Court, rule 8.360, subdivision (b), the attached brief contains 1149 words in 13 point type, according to the word count software ofmy computersoftware. s/ John Ward Counselfor Petitioner APPENDIX A Filed 11/19/13 P. v. Elizalde CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinionsnotcertified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not beencertified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATEDISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, A132071 Vv. GAMALIELELIZALDE,et al., (Contra Costa County “Super. Ct. No. 050809038 Defendants and Appellants. r Oo ) I. INTRODUCTION This case involves four victims: Antonio Centron, Luis Perez, Lisa Thayer and Rico McIntosh. Defendant Javier Gomez was found guilty of the second degree murder of McIntosh and the jury found true enhancements for participating in a criminalstreet gang andintentionally discharging a firearm causing bodily injury or death. A second jury found defendants Mota and Elizalde’, guilty of the first degree murderof Centron, Perez and McIntosh and came back with an acquittal as to Lisa Thayer. The jury also found Mota and Elizalde guilty of conspiracy to commit murder, participating in a criminal street gang and found true enhancementsforparticipating in a criminalstreet gang. As to Mota,the jury found true an enhancementfor intentionally discharging a firearm causing great bodily injury or death. Elizalde was also found guilty of dissuading a witness by force or threat offorce. ' Because Gomez confessed to one of the murders and implicated Mota,the court ordered a single trial with two juries: one jury for Gomez and the second jury for Mota and Elizalde. On appeal, Gomez arguesthat(1) the trial court had a sua sponte duty to instruct the jury that an unforeseeable supervening cause might have caused Rico McIntosh’s death (Elizalde and Mota join in this argument); (2) the trial court did not properly answerthe jury’s questions regarding the elements of second degree murder(Elizalde joins in this argument); (3) the trial court erred in permitting testimony regarding threats to witnesses (Elizalde and Motajoin in this argument); and (4) thetrial court erred when it failed to instruct the jury that witness Oscar Menendez was an accomplice as a matter of law (Elizalde and Motajoin in this argument). Motaarguesthat the trial court erred whenit (1) found that there was no prima facie case of discrimination with regard to an African-American prospective juror (Gomez and Elizalde join in this argument); (2) gave the jury the task of determining whether four witnesses were accomplices (Gomez and Elizalde join in this argument); (3) admitted into evidence a statement Mota made during booking regarding his gang affiliation (Gomez and Elizalde join in this argument); (4) instructed the jury not to speculate about why unjoined perpetrators were nottried in the sametrial (Gomez and Elizalde join in this argument); and (5) admitted evidence that Mota attacked Jorge Sanchez in jail (Gomez and Elizalde join in this argument). He also arguesthat (6) during his rebuttal to the defense’s closing argument, the prosecutor committed misconduct (Gomezand Elizalde join in this argument); and (7) there was cumulative error. Elizalde contends on appeal that (1) there is not substantial evidence to support the jury’s conspiracy finding (Gomez and Motajoin in this argument); (2) the trial court failed in admitting phone calls between Hector Molina and his mother underthe co- conspirator exception to the hearsay rule (Gomez and Motajoin in this argument); (3) trial counsel wasineffective forfailing to seek redaction of a statement Elizalde made to Molina’s mother during oneofthese jail calls; (4) the trial court erred whenit instructed the jury, pursuant to CALJIC No.3.13, that the required corroboration ofthe testimony of an accomplice may not be supplied by the testimony of any other accomplice (Gomez and Mota join in this argument); (5) the trial court erred when it admitted evidencethat Elizalde possessed methamphetaminefor sale to prove a predicate offense for the gang charge and enhancements (Gomez and Motajoin in this argument); (6) counsel was ineffective for failing to object to other crimes evidence regarding the conspiracy to commit murders (Gomez and Motajoin in this argument); and (7) there was cumulative error. With the exception of the admission ofMota’s un-Mirandized” statements made when he was bookedinto jail, an error that was not prejudicial, we find no other error and affirm the judgments. II. FACTUAL AND PROCEDURAL BACKGROUND A. The Murders Defendants Mota and Elizalde were convicted of three murders that occurred over a four-month period between December22, 2007, and April 25, 2008. Gomez was convicted of one ofthe three, that of Rico McIntosh. The most significant testimony regarding these murders came from fellow gang members and/or friends, Jorge Sanchez (Centron murder), Victor Cervantes (Centron murder), Oscar Menendez (McIntosh murder), and Larry Valencia (Perez murder). 1. Antonio Centron Murder Jorge Sancheztestified that in exchange for his testimony he pled to accessory after the fact to murder, and received a three-year suspended sentence. Sanchez, who wasnot in the country legally, also had a “parole in place” arrangement with Immigration and Customs Enforcement and, as a result, wore an ankle bracelet monitor. Sanchez testified that he was a memberofVarrio Frontero Loco’, a subset of the Surefio gang, whichis active in Contra Costa County. * Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). ? Asone of the prosecution witnesses explained, Varrio Frontero Loco“just stands for it’s a hood, you know,no matter from where country you are from, you are in the hood.” The evening of December 22, 2007, Francisco Romero , who wasalso a Varrio Frontero Loco, gathered together a numberofpeople and went to North Richmond.’ Whenhearrived, Molina phoned defendant Gamaliel (Gama) Elizalde’ “because supposedly he was going to put a meeting to goupthere, just fight them [the Richmond Sur Trace members].” After speaking to Romero, Elizalde came to North Richmond. Elizalde then tried to call a Richmond Sur Trace memberin orderto arrange a fight but wasnot able to reach anyone. After the failed effort to engage the Richmond Sur Trace, Sanchez, Romero and Molina eventually drove to the Broadwayarea of San Pablo, which was knownto be Nortefio territory. Sanchez understood that if they found Nortefios there they would beat them up or shoot them. He understood this “was part of the deal of being a . . [Varrio Frontero Loco] Surefio at this time.” That same evening, the victim, Antonio Centron, along with two friends, Neil Wixson and Adrian Espinoza, attended a party in the Broadway area of San Pablo. They stayed at the party for a couple of hours and then walked down LakeStreet, toward 19th Street to buy beer. This area of San Pablo wasa stronghold of the Nortefio gang. Wixson and Centron woreredshirts, a color associated with Nortefios. Centron walked a little ahead of his friends. Romero drove by Centron, Wixson and Espinoza. Molina, who wasin the right front passenger seat, told Romero he knew oneofthe three men. Molina pulled out a handgun and directed Romero to park down the next street. Romero parked and Molina ran out, and hid behind a fence, waiting for Centron, Wixson and Espinoza to cometo the comer. When they did, Molina told them he was “VFL” and emptied his gun in their * Preceding this gathering, there had been altercations between members of Varrio Frontero Loco and another Surefio gang called Richmond Sur Trace as well as with rival Nortefio gang members. > Weidentify the witnesses, victims, defendants and otherparticipantsin thistrial by their full namesrather than their gang nicknames. Where necessary for clarification, wewill indicate the full name of any person identified in testimony solely by his gang nickname. direction. His first shot hit Centron in the head. Centron died almost immediately. Nine more shots hit Espinoza in the back. Molina’s final shot hit Wixon in the arm. Espinoza, whowasstill conscious (and ultimately survived his injuries) called 911. After killing and wounding the men he believed were rival gang members, Molina ran back to the car and they sped off. In the car, Molina was jumpy and excited. According to Sanchez, Molina said “to watch the newspaper. That’s—that was going to be his trophy.” A newspaperarticle about a killing was “[l]ike a signature that you did it.” The killing would give Molina “more respect” in the gang. Molinacalled Elizalde to tell him what he’d done. Elizalde arrived “andjust started telling him just be quiet, stop, you know, screaming andjust lay low.” | The next day, the police detained and searched Molina. They found in his possession a .45 caliber chrome Colt semiautomatic handgun, a blue bandana,and a blue baseball hat. The police arrested him and charged him with possession of a concealed firearm. Molina wasreleased from jail four dayslater. Victor Cervantestestified that right after Molina got out ofjail, he called Cervantes and asked for a ride home. Molinatold him that he’d killed one man and another was ina coma. Healso told Cervantes that he’d been with Francisco Romero when he’d killed the man. Cervantes asked him how hegotout ofjail when he’d been caught with a gun. Molina told him that he got caught with a different gun than the one used in the killing and, as a result, he had gotten away with murder. In an interview with the police, Luis Ruelastestified that Molina admitted to him that he wasin the car with Romero and Sanchezthat evening and that Molina said he had shot at three men and killed one of them. Defendants Elizalde and Mota were found guilty of Centron’s murderas co- conspirators. 2. Luis Perez Murder Larry Valencia was one of the prosecution’s main witnesses with regard to the murder of Luis Perez. Valencia had not madea plea bargain with the District Attorney’s office, nor was he receiving any witness protection or money from the District Attorney’s office. Valenciatestified that late on the night of February 16, 2008, he decidedto visit friends in North Richmond. After an evening of drinking beer, smoking marijuana and taking Ecstasy someonesaid,“[l]et’s jump for a ride. Let’s go find some females to party.” Hector Molina, Jorge Camacho, and Jose Mota got into Mota’s black, two-door Kia. Molinasat in the driver’s seat, with Jorge Camacho nextto him in the passenger seat and Motain the back. Cole Azamar and Luii Hernandez got into Azamar’s car, with Azamardriving and Hernandezsitting in the passenger seat. All five men were members of Varrio Frontero Loco. They encouraged Larry Valencia (whotestified that he was not a gang member)to join them and he gotinto the back seat of Azamar’s car. After the two cars drove around for a while, with Azamar following Molina, they arrived in San Pablo. Valencia was aware that this was Nortefio territory. Molina stopped the car and Valencia saw the people in Mota’s car arguing with a man in a red jacket—the victim, Luis Perez—who wasstanding next to the car. He saw Camachogetout of the car and say to the man, “[s]how me your hands, show me your hands.” The man yelled “[w]hat the fuck is going on?” Valencia heard three loud shots and saw Camachoshoot the man three or four times. In fact, Camacho hit Perez seven times: two bullets to the abdomen, two to the back and three to the back of his arms. The bullets passed through Perez’s lungs, heart and liver. Perez died en route to John Muir Hospital in Walnut Creek. Camachogot back into the car with Molina and Mota and Molina drove away. Valencia had never seen anyone killed before. Valencia told Azamar to take him back to his car so he could go home. Mota was found guilty of Perez’s murder on an aider and abettor theory. Elizalde was found guilty as a co-conspirator. 3. Lisa Thayer . The third victim, Lisa Thayer, died when Jorge Camacho, a memberofVarrio Frontero Loco, exchanged shots with several unidentified men in a Toyota minivan. This altercation beganlate in the afternoon of February 27, 2008. Camacho and his friend Antonio Solomon, were walking on San Pablo Avenue in San Pablo.° Solomon was wearing a New York Yankees hat. In that area, that kind of hat was understood to stand for ‘““Young Narfer,” a reference to North Richmond, which was Surefio territory. A burgundy Toyota minivan with a Hispanic driver and front seat passenger and African-American passenger in the back seat passed Solomon and Camacho. Solomon and Camachoran. The men in the minivan chased them. Eventually, the minivan pulled up behind Solomon and Camacho. Theside door opened,revealing that the back seat passenger had a gun. Camacho shot at the van with the same 9 mm semiautomatic handgun he used to kill Perez. He fired nine times. The manin the vanalso fired a .40 caliber semiautomatic handgun several times. Lisa Thayer, who was walking on San Pablo abouthalf a block from the shooting, washit by a bullet. The bullet hit her in the back, went through her right lung and came out at her chest. Thayer died soon afterwards. Solomon and Camacho ran from the scene with the van following them. Someone in the van fired several more shots at them. Soloman and Camachoclimbed a fence and ran to the apartment of a friend—Ignacio Mendoza. When Mendoza’s mothertold them to leave, Camacho gave his gun to Mendoza andleft with Solomon. Thepolice arrived nearby, a witness pointed them out and they were arrested. Camacho had a blue bandana in his pocket. The jury found defendants Mota and Elizalde not guilty of Thayer’s murder. 4. Rico McIntosh The fourth shooting occurred in the early morning hours of April 26, 2008. Oscar Menendez, who waspresentat the shooting, testified that he had pleaded to accessory to the murder of McIntosh with a gang enhancement. He wasgiventhree years probation. ° Muchofthe evidence regarding this incident came from an interview between Solomon and the police. As acondition ofhis plea, he agreed totestify in court. At the time hetestified he was in “parole in place,” which meant he wore an ankle monitor required by Immigrations, Customs and Enforcement. The People wereassisting him in obtaining a work permit. Menendez hadnotviolated any of the terms of his probation or the terms and conditions imposed by Immigration, Customs and Enforcement. He did not receive any money from the District Attorney’s office. Menendeztestified that he had known Motafor several years. Mota was a memberofVarrio Frontero Loco. Menendez also knew Javier Gomez. The three of them hung out together and “sometimes weusedto get in the car and just cruise around.” Gomez belongedto a Surefio subset called Mexican Loco.’ Menendez hadbeenat parties where members of the two Surefio subsets would brag “about crimes they have done during the week or, you know,anystuff that they doing, you know,like beating somebodyup or robbing people or whatever crimes they do, they used to brag aboutall of the time.” Six months before the McIntosh murder, Menendez became a Surefio. Menendez described an incident that occurred about a week and a half before the MclIntosh murder. He, Gomez and Mota went to visit Gomez’s cousin wholived in Montalvin, which was Nortefio territory. Mota drove his Kia, and Gomezsat in the front passenger seat. Menendezsat in the back. The cousin wasn’t home,so they turned around to return to Richmond. As they did so, Gomez and Mota saw a man wearing red who wasfixing his car. Mota and Gomez “said he was a Buster. He was wearing red....” Menendez didn’t agree and when he saw that Gomez and Mota had a gun’ in the front seat he told them to drop the gun. Menendez tried to grab the gun andin the ensuing scuffle, someone shot Menendezin the leg. ’ During a search of Gomez’s home,the police collected evidence of Gomez’s gang membership—four CD cases with “Surefio-type titles on them,”“six individual CDs with Surefio-typetitles,” “[a]nother CD .. . again, with Surefio-typetitles,” “[t]wo blue bandanas.” ® Menendez had foundthis gun earlier, but he gave it to Mota when Motatold him that he (Menendez) couldn’t shoot it and “might as well just give it to him... .” Menendez wasbleeding heavily, so Mota and Gomez took him to the hospital. The police questioned Menendezandhelied and told them that they had been jumped and he had been shotin the leg becausehe told his assailants that he didn’t have any money. Several weeks later, Gomez and Mota pulled up to where Menendez was hanging out with somefriends and “they were calling me, right, and I went to the car and they say get in the car. I was like where are you guys going? They said don’t trip.” As on the other occasion, Mota wasdriving and Gomez wasin the front passenger seat. Menendez askedifhis friend could go too, and Motatold him he couldn’t. Menendez got in the car and they decided to go to a McDonald’s on San Pablo near Broadway. Instead of turning right into the McDonald’s, however, Mota turnedleft onto Broadway. Menendez asked Mota were he was going andhesaid “don’t trip.” Mota kept driving. At this point, they were driving into Nortefio territory and Menendez thought “they were looking for some Nortefios . . . or they were trying to do something again.” Gomezspotted three men wearingred at a stop sign. Mota stopped the car and asked the men if they were “busters.”” The men said they weren't, and Menendez recognized one of them and told Motathat “they don’t bang... .” Mota drove away but “he kept on mugging’ them.” Mota then spotted Rico McIntosh, who looked, to Menendez,like he was wearing a red bandana and had some“red on his pants, too.” Mota and Gomez thought he looked like a Nortefio. They pulled alongside McIntosh and Gomez asked him “if heis a buster.”” McIntosh said “what the fuck is a buster?” Menendez thought he heard Mota say “pull it out.” He then saw Gomez reach down towardhis leg. McIntosh made a gesture as though to reach for something and Menendez thought it was a gun. Gomez beganto fire the gun out of the window of the car. Menendez heard fourorfive shots. Mclntosh fell and Mota and Gomez began to laugh. Menendez told them it wasn't funny and they told him he was a “pussy.” Menendez said he wanted to go home. “I told them > Menendezdefined “mugging”as “like he look hellabad at him.” whatthey just did, it was wrong because I never seen somebodykill another personlike that.” Mota and Gomez “seemedpretty happy,like they just won thelottery or something. They werereally excited about it.” Mota and Gomez wantedto celebrate, but Menendez asked to go home. On the way, Mota and Gomeztalked andsaid, “Oh, you know, what the homies are going to say when theyfind out, or was he good, was he bad, you know they were saying that it was like, you know,it was like perfect. Perfectis no one sees them. [J] No one seen us when we were there. When that happened there wasno peopleat all, just that guy.” Whenthey arrived at Menendez’s house, Motaleft the gun with Menendez. He told Menendezthat he was on parole and couldn’t haveit. A weekor so later, Menendez went to a party with members of Varrio Frontero Loco and Mexican Loco. At the party, Gomez “started talking aboutit.” Ruelas was also present, along with a numberofother Varrio Frontero Loco and Mexican Loco. Mota wasalso there. Gomez confessed to the McIntosh murder. Hetold the police that Mota picked him up the night of the murder and the two of them wentto look for Nortefios. Mota gave him the gun he used to shoot Rico McIntosh. Mota’s job wasto drive until he saw a Nortefio and then stop. Gomez didn’t plan to shoot anyone who wasn’t a Nortefio. After driving around for a while Mota and Gomez picked up Menendez. Menendez sat in the back seat. They continued to look for Nortefios, slowing downto look and then ruling out a numberof groups of people who were out that night. Eventually, either Mota or Menendez spotted McIntosh, who was walking downthe street. Mota told him that McIntosh had some red on. Gomez “asked him, are you a Buster? Andhe said, what the fuck is a buster? He, he had a hoodie. Then helike, he pulled the hoodie downas if he wanted to do something, so I just shot him.” He shot McIntosh until there were no bullets left in his gun. 10 After the shooting they went to a store and bought somebeer and drank it at the cemetery. He gave the gun to Menendez. Menendez saw the whole thing from the backseat. McIntosh washit in the hip and buttocks. He was taken to John Muir Hospital and released on April 28, 2008. The next day, McIntosh collapsed and died after blood clots caused by the gunshot woundstraveled to his lungs. Gomez was convicted of second degree murder. Mota wasconvictedoffirst degree murderas an aider and abettor and Elizalde was convicted as a co-conspirator. B. Conspiracy and Gang Evidence Several witnessestestified to a conspiracy on the part of Mota and Elizalde to commit murders of rival Nortefio gang membersin orderto restore the reputation and fortunes of the Varrio Frontero Loco. 1. Jorge Sanchez Jorge Sanchez was a memberofVarrio Frontero Loco.'° He joined because his older brother was in the gang. Sanchez’s brother was a memberofthe Mexican Loco, another Surefio gang, and he joined the Varrio Frontero Loco because he wanted his own “name.” He was “jumped in” to Varrio Frontero Loco, through a process he described as “TjJust imagine three guys beating on oneperson, kicking him, beating him,just thumping on him” for 13 seconds. He had also helped jump people into the gang. Sanchez showedthe jury a numberoftattoos that signified his membership in Varrio Frontero Loco. Gang tattoos were important so people ““won’t mess with us.” A Surefio who wanted to prove himself would “[j]ust go to the streets. Beat up any Nortefio you can think ofto start with. . . . [{] Just you earn respect and your stripes. Start shooting or just doing whatever you want.” You would do this with other people “[t]o make sure you do it. Just to make sure you ain’t lying about what youdid.” When '° Ofthe witnesses who provided significant testimony regarding the workings of the Varrio Frontero Loco and Elizalde and Mota’s positions and participation in the gang, Sanchez wasthe only one the court concluded was an accomplice as a matter of law. Accordingly, the jury was instructed to view his testimony with caution. 11 Sanchez went out to attack Nortefios, he would take fellow Varrio Frontero Loco with him. He would do that for “backup.” He would also do it to “make sure they doit, too. Makesure they look at you.” Sanchez understood that at the time oftrial, Mota and Elizalde had “green lighted” him; that is, they had ordered him killed for talking to the police. Green lighting did not occuruntil the actual text of a statement madeto the police was distributed “to the streets,” generally through a defendant who received the statement from his lawyer. Surefios were enemies with Nortefios because they were “mixed people”: “part Mexican... they mix with Mexican black, Mexican white.” You could tell who they were by “[t]he hair, the clothes, the grill that is like the gold teeth they wear. [{] And if they got tattoos you lookattattoos, belts.” In particular, Nortefios had long hair, “all of the new clothes the black people be coming out with,” and worethe colorred, including red belts. Surefios identified themselves with blue bandanasandbluebelts. Sanchez was familiar with a numberofNortefio sub-gangs including West Side Berkeley, Montalvin, Varrio San Pablo. Each of them claimed a particular area. Varrio San Pablo claimed the area near Broadway andthe Hilltop Mall. As a Surefio, when he saw a Nortefio he was supposedto “[t]ake off, just don’t even think aboutit, just hit them up. . . . Just whoophis ass.” Varrio Frontero Loco used violenceto scare “[j]Just the people, Nortefios whoever—everybody,the blacks, the whites, the Asians.” They did so “[j]ust so they won’t mess with us. .. . [P]eople be picking on people. Sometimes people just look for a way out. And just make sure they scared of you instead of you being scared of them.” Fame mattered because it was a way of “representing my hood,”“[j]ust to let people know . .. where you are from.” You did that by “doing a lot of things, shooting, selling drugs, getting money, cars, just whoop—whooping people in front of other people.” A Varrio Frontero Loco would “throw it up” by telling someone whothey were, just make sure they know it. Being feared by rival gang members was a good thing— “fyjou can be walking the streets with no one, no one is trying to hit you up or something.” 12 Gang members would get together and brag about what they had donein orderto let people know that“if they mess with you they will get the same . . . treatment.” He would also get together with other Varrio Frontero Loco and plan future crimes “to get respect or to make people afraid.” With regard to non-gang members, it was important to “Jet them know that... we don’t mess with you and you just don’t mess with us.” Drug sales were a part of being a Varrio Frontero Loco. Sanchez “wasn’t into that,” but he had seen fellow gang member Gamaliel Elizalde selling drugs out of his backyard. He would sometimes give drugs to Mota to sell and Mota would brag aboutit. The drug sales were run out of Elizalde’s house. Varrio Frontero Loco held meetings to “check in with each other, to make sure what was going on with each other and just what kind ofproblems, like people got problems with someone,different rivals or with a Nortefio or something.” Sometimes the members would put money together for people in jail to use for “hygieneslike toothpaste, soap, Shampoo... .” Elizalde was in charge of putting money “on the books”for the Varrio Frontero Loco members whowereinjail. The meetings were not held often. Sometimes the meetings would take place at Victor Valencia’s house and sometimes at Elizalde’s house. Occasionally, he and other members would “check,” or beat up, a member who wasnot “putting in work or he ain’t kicking it with us a lot... .” At the time Sanchez joined Varrio Frontero Loco in 2005 or 2006, it was led by a numberofmen, including Gamaliel Elizalde. Elizalde was an “OG”! or leader, “the one you look up to. . .. The one[] that you go ask for advice.” One of the benefits of being a leader wasthat he “get to kickback or just don’t do a lot of things no more.” A leader 'T Sanchez explained that “OG” meant “[j]ust like an old Cadillac, like an older guy, just the one whoislike forties, thirties, forties.” You get to be an “OG”by going “through a lot... . They went throughtheir stages, just like we went through ourstages, we going through ourstages... . [f] ... [T]hey know morestuff than we do. They got more opportunities in their brain.” 13 would not “fight somebodyor put a lot of work in the streets, shooting, whatever, just get to just relax and let the other generation do their work.” A leader would have money from “things going on on the side.... [{]] .. . like they wereselling drugs... .” The leaders woulduse the “pee wees” or younger members “to distribute it... .” In 2007, there were several subsets of Surefios with whom Sanchez was familiar: his own gang, Varrio Frontero Loco, another gang called Mexican Loco and a thirdcalled RichmondSur Trece. Although they wereall Surefios, they did not always get along. In 2007, a Varrio Frontero Loco leader called “Toby” shot a member of a RichmondSur Trece and fled, along with his brothers, to avoid being killed in retaliation for murdering a fellow Surefio. This left a void in the leadership of Varrio Frontero Loco, which was filled by Elizalde. As Sanchez putit, after Toby fled, “everybody wasjust going to Gama, sothat's the only one who welook up to and who wasthere with us.” Nevertheless, after Elizalde took over, Varrio Frontero Loco beganto dissolve. “{E]verybodyjusttry to take it their own way. It was—just disappeared. Some of them went to some other towns. People got scared because they got shot at, who was getting stomped on.” At this point, Varrio Frontero Loco were “getting hurt” and “things were bad.” Sancheztestified that “we just had to get it back together.” He and others referred to this as “bring[ing] the hood back.” To dothis, it was necessary to “recruit[] new people and try to do more damage to the Nortefios, to the streets.” All of the Varrio Frontero Loco wantedto bring the hood back, including Elizalde. In terms of the hierarchy of Varrio Frontero Loco, Elizalde was the leader, and Sanchez wasdirectly under him along with Mota, Ruelas, and several others. 99 66 Elizalde told the Varrio Frontero Loco that they had to “put in more work,” “go to the streets, ride aroundthe streets,” “[m]ake sure they [the Nortefios and everybody] know we around, weain’t gone.” They would do this by “hit[ting] the streets, ride around, especially in Nortefio territory.” Sanchez explained that this was effective because the Nortefios “don’t expect us to go. They think we going to be scared. They 14 think we going to just lay back. And wegothere and they go, oh, man, they coming back and they coming back hard.” In Nortefioterritory, [i]f you see them just shoot them or whoop them, whatever you got. If you don’t got no gun you just get out and do what you got.” Sanchez discussed this plan with all the Varrio Frontero Loco, including Mota. He didn’t talk to Elizalde about why he wanted to bring the hood back; he only knew that Elizalde “wanted it done.” According to Sanchez, he and Mota, along with Luis Ruelas, Luii Hernandez, and Cole Azamarwere “the ones who wasgoing to bring them back . . . just the ones who got to take care of everything.” They covered different parts of Richmond. In addition to attacking Nortefios, they also recruited and “guided” “pee wees.” Elizalde wanted them to “get into the high schools and expand the Surefios and hurt the Nortefios.” Shortly before Sanchez wasarrested, Mota cameto his house. He was nervous becausethe police had been to his house. Mota told him that he [Mota] “wentin the shootout.’ He also spoke to Jorge Camacho whotold him that he “shot a lady.” 2. Oscar Menendez Oscar Menendeztestified that at the time of the Rico McIntosh murder, he “was undecided” about being a Varrio Frontero Loco. He “didn’t want it for my future... it wasjust fine being with them, you know,being with girls and having parties, but I didn’t like the rest that they used to do.” He had a lot of Surefio mentions on his MySpacepage, and he liked being around the gang because it “was fun because they always used to hang around with a lot of girls and they always used to have parties every weekend and, you know,beers and music.” He wasaware that gang members “hunted and attacked Nortefios.” However, no one ever “told meto doit.” He was never “jumped in.” He associated with the Varrio Frontero Locofor six or seven months beginning in November 2007 until his arrest about a week after the McIntosh murder. It was typical for gang membersto brag about their crimes. He explained, “they say that’s what they get respect because when they—whentherest of the guys knew what 15 you were doing they will respect you more than what they do.” This was a “big deal” to the Varrio Frontero Loco. The Nortefios were the Varrio Frontero Loco’s rivals. Menendez knew whatareas were Nortefio territory. He also knew that if a Varrio Frontero Loco found a Nortefio or saw onehe wasto “beat him up and if you have a gun you haveto use it.” That is because the Varrio Frontero Loco “wantedto get rid of Nortefios.” He knew both Javier Gomez and Victor Cervantes, both ofwhom were members of the Surefio gang, Mexican Loco. Whenheassociated with these gangs he knew they got along “but not that much”atfirst. According to Menendez, Varrio Frontero Loco “wasn’t that much organized.” He “never knew who wasthe shot-caller ... .” He was aware that the members “used to receive orders from someolder guys .. . .”. When he asked what they were doing, the members would say “don’t trip . . . that’s something that I got to do andthat’s it.” In his own mind, he thoughtthat Elizalde was the shot-caller because he once heard him giving orders to someone. At one point, Elizalde told Menendezthat “in order to be a Surefio you haveto get down, you now, don’t have to be a fear of anybody,if you see a Nortefio on the street you have to put him on check, beat him up or anything that is in your hands to get him away from Richmond,and to don’t let them come to Richmond,let them stay in San Pablo.” Specifically Elizalde told him that if he saw a Nortefio he was to beat him up and ifhe had a gun to useit. Elizalde once told him that in order to be a Surefio he had to “stick with themall the time and commitsort of a crime that he used to commit—I had to do the crime that they used to do in the week and stick around with them and, you know, do whatever they—they were doing during the week.” This would include “Ts|tealing cars and robbing people, shooting Nortefios, beat them up.” Mota told him the same thing. Healso told him that he had to “earn” a Varrio Frontero Locotattoo by doing something “big”like kill a Nortefio. On three occasions, he heard Elizalde instruct someone to beat up a Nortefio or to look for him. He also heard Elizalde say that Richmond was Surefio territory. 16 Menendez named a numberofVarrio Frontero Loco as those with the most respect in the gang. They were Molina, Azamar, Camacho, Ruelas and Sanchez. He also knew Larry Valencia, who he didn’t think was a gang member. Hefelt that he had to do what Elizalde told him to do. He did not, however, think that he had to hunt Nortefios in San Pablo. When he went with Mota and Javier Gomez on April 13, 2008, which wasthe day he shot himself by accident, he did not know that they were looking for Nortefios to kill. Nor did he think that was the case on April 26, 2008. He did notrealize that they were looking for Nortefios to kill until the car did not turn toward the McDonald’s on Broadwayas he had expected. In jail, Menendez received a message on the module where he was housed from the Surefio shotcaller. The message laid out in detail how he was to behave while incarcerated. Amongotherthings, he was to contribute money to buy food and supplies for other Surefios, he was not to speak to the police, he was to follow orders from the shot caller and if he was asked, he was to beat people up the shot caller told him to attack. He wasalso required to give the shot caller a copy of the police report on his arrest as well as any other legal materials in order to permit the shot caller to determine whether he was a snitch. Menendez refused to give these materials to the shot caller and, several days later, he was beat up by several Surefios. He entered protective custody afterwards. 3. Luis Ruelas Luis Ruelastestified that he was a member of Varrio Frontero Loco for six years until 2008. He was 14 or 15 when he was jumpedinto the gang. Jose Valencia brought him into the gang. Ruelas’s testimony before the grand jury was admitted into evidence. In that testimony, Ruelas told the grand jury that he had “earned”a tattoo that said “Chap Killa” on his arm. He worked his way up from the bottom of the gang by earning “respect” through shooting and beating up Nortefios. Nortefios were identified by the colorred, while Surefios wore the color blue. Ruelas became close to one of the top people in Varrio Frontero Locoat the time, Victor Valencia. Valencia had securedtheir territory by running out another gang that had previously beenthere. 17 Ruelas was deported to Mexico and Victor Valencia fled the country. When Ruelas returned, Elizalde “was the main—wasthe kingpinat that time, but everything else was a messonthestreets.” Elizalde was “movingall the drugs.” With Victor Valencia gone, “[h]e took overall ourstuff.” Ruelas did not like Elizalde. Elizalde gave orders to kill people, including one occasion when Elizalde told Ruelas to “kill somebody because they poppedhistires.” He didn’t do it because at the time he was working as an informant with the San Pablo police. As part of his deal with the police, he promised not to participate in the commission of any crimes. Elizalde also would send Ruelas out to collect debts using violence. Ononeoccasion, before he returned to Richmond, Ruelas spoke to Hector Molina, who told him “We miss you... . We bringing the hood back.” According to Ruelas, “the whole part of being a Surefio” was to “assault or kill Nortefios.” Ruelas’s testimony at an earlier gang prosecution was also admitted into evidence. At that time, Ruelastestified that violence was an important part of bringing the hood back “{b]ecause if... you don’t have people be scared of you, they ain’t going to respect you. They going to belike, you know, whatever. As long as you show them youreally about it, they will think aboutit twice before they come at you.” Violence also helped recruit new members who “seen what we were doing and they knew we had money. We had girls, we had everything. And they wantedit, too, so they started joining in.” At trial, Ruelas wasreluctantto testify because of threats to his family. In general, he either outright denied or claimed to forget testimony he had earlier given about Varrio Frontero Loco. Attrial, he testified that Varrio Frontero Loco did not havea structure in which there was a shotcaller. Instead, there were people he looked upto, including Victor Valencia. Ruelas also had respect for Elizalde because he washiselder. Ruelas showedthe jury tattoos on his forearmsthat said “Chap Killa.” A Chap, he explained, is a Nortefio gang member. He had donea lot of crimesto earn the tattoo. Oneofthe rules of being a Surefio “is just you got to represent yourself the right way.” To do that, you had to have respect, which you earned throughloyalty. If a Varrio Frontero Loco saw a Nortefio he was expectedto get into a fight with the Nortefio. He 18 would sometimes go out and look for Nortefios to find. The Broadway area in San Pablo wasone place the Nortefios hung out. He knew Elizalde because they “used to kick it outside his house.” Elizalde was a Varrio Frontero Loco. He was older and “some guys cameup to him for advice.” Although he hadearlier told the police that Elizalde was “running the streets,” he had done so because “I wasjust trying to save my life from being prosecuted, but it was— what I said was wrong ....” In general, he retracted a numberof statements he made earlier in which he had identified Elizalde as the person who hadtaken over drugsales, the person to whom he would go if he needed a gun quickly, and as having list of people that needed to be hit. He also did not remembertelling the police that Mota brought a pound of methamphetamineto his house along with a gun and said he was going on a drug deal. D. The Verdicts The Gomez jury deliberated for three days and came back with a second degree murder verdict with regard to Rico McIntosh. It found the firearm and gang enhancementstrue. Thetrial court sentenced Gomez to an aggregate term of 40 years to life in prison. After four days of deliberation, the Mota/Elizalde jury brought back guilty verdicts on three murder counts and an acquittal with regard to the death of Lisa Thayer. It also found Motaand Elizalde guilty of conspiracy to commit murder, participating in a criminal street gang and found true enhancements for participating in a criminalstreet gang. As to Mota, the jury found true an enhancementfor intentionally discharging a firearm causing great bodily injury or death. Elizalde was also found guilty of dissuading a witness by force or threat of force. The court sentenced Mota to an aggregate term of 100 years to life. It sentenced Elizalde to an aggregate term of 103 years tolife. This timely appeal followed. 19 Ill. DISCUSSION A. Unforeseeable Supervening Cause Instruction Rico McIntosh’s death was caused by a pulmonary embolism 72 hoursafter he was shot and a day after he wasreleased from the hospital. Gomez arguesthat the trial court erred becauseit failed to instruct the jury, sua sponte, that they were required to determine whetheractions other than Gomez's—in particular, the decision of his doctors to release him from the hospital—constituted an unforeseeable supervening case. He also contendsthat the instructions the court gave were inadequate. We disagree. a, Factual Background McIntosh died at around noon on April 29, 2008, after having been released from John Muir Hospital the morning before. Dr. Ikechi Ogan performed MclIntosh’s autopsy. Ogan examined two bullet wounds; one was located on Mclntosh’s right thigh and the other on his left hip. Neither was fired from close range. McIntosh had large hematomas on his thigh and hip where he had been shot. A large blood clot was blocking both of MclIntosh’s lungs. Ogan determinedthat this blood clot, which totally blocked the flow of blood, madeit impossible for McIntosh to breathe and wasthe cause of his death. The clot was caused by “complications of the gunshot wound to [McIntosh’s] pelvic region” and wasthe cause of his death. Ogantestified that in general a doctor would know that bloodclots are “very likely when you haveinjury to the lower body andpelvis.” Thetrial court sustained an objection to defendant’s question about whether the doctors at John Muir should have “kept an eye on” McIntosh. Ogantestified that McIntosh’s follow-up care at John Muir wasnot relevant to his determination of the cause of death: “I have no desire to comment on... why he wasreleased. [{]] Myjob wasto figure out a cause of death ofthis gentleman. AndI did that with the information I had. [{] I had enough information from the investigating officers and the sheriff's department to do what I had to do and I did that. [§]] That he was released was not... in my control. I had a dead bodyinfront of me. I had to decide whatkilled this dead body andI didthat.” 20 Whenaskedif the gunshot wounds would have beenfatal “but for”the clotting, Oganreplied as follows: “[T]he best thing that I can say is that I have seen people who have gunshot woundsto an extremity, say a thigh or leg, who died. I have seen people who had a gunshot[] woundto the thigh or leg who didn’t die. Same with the pelvis,it all dependson the individual.” b. Discussion Gomez does not appear to challenge the instructions the court gave the jury on causation. Rather, he arguesthat the trial court should have instructed the jury sua sponte that if it found that the decision to release McIntosh wasthe sole cause of his death (apparently if it was grossly negligent), then it could not find that Gomez was the cause of MclIntosh’s death. Heis incorrect. Thetrial court’s duty to instruct the jury sua sponte extends only to the general principles of law that are necessary for the jury’s understanding of the case. (People v. Mayfield (1997) 14 Cal.4th 668, 773.) The court did so by giving the jury the full panoply ofinstructions on causation.’ Having adequately instructed the jury, the ? The trial court gave the jury several instructions on proximate cause. It instructed the jury pursuant to CALJIC No.3.41 as follows: “There may be more than one cause of death of Rico McIntosh. Whenthe conduct of two or more persons contributes concurrently as a cause of the death, the conduct of each is a cause of the death if that conduct wasalso a substantial factor contributing to the result. A causeis concurrentif it was operative at the momentof the death and acted with another cause to produce the death. If you find that a defendant’s conduct was a cause of death to another person, then it is no defense that the conduct of some other person, even the deceased person, contributed to the death. It is not a defense to a criminal charge that the deceased or some other person was guilty of negligence, which wasa contributory cause of the death involved in the case. Wherethe original injury is a cause of the death, the fact that the immediate cause of death was the medicalor surgical treatment administered or that the treatment was a factor contributing to the cause of death will not relieve the person whoinflicted the original injury from responsibility. Where, however, the original injury is not a cause of the death and the death was caused by medicalor surgical treatment or some other cause, then the defendantis not guilty of the unlawful homicide [{]| Ifa person unlawfully inflicts a physical injury upon another person andthat injury is a cause of the latter’s death, that conduct constitutes an unlawful homicide even though the injury inflicted was not the only cause of death. Or, moreover, that conduct constitutes 21 trial court did not have a duty give clarifying or amplifying instructions unless counsel requested them. (/d. at p. 778.) Nor does defendant arguethat the instructionsthetrial court gave were either incorrect or misleading. Gomez instead argues that the court should have instructed the jury on the application of these principles of causation to the decision by the hospital to release McIntosh andinstructedthejury that if it found that the decision to release McIntosh was grossly improper, they could conclude that this maltreatment was the sole source of death. Wedisagree. The court’s sua sponte duty to instruct on general principles of law does not extend to “pinpoint” instructions. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) Pinpoint instructions “relate particular facts to a legal issue in the case or ‘pinpoint’ the crux of a defendant’s case, such as mistaken identification oralibi. [Citation.] They are required to be given upon request whenthere is evidence supportive of the theory, but they are not required to be given sua sponte.” (/bid.) Gomez did not request such an instruction and the court had no sua sponte duty to give one. Therefore, we conclude that the jury was properly and adequately instructed on the principles of causation. Nor does defense counsel’s decision not to request such an instruction amountto ineffective assistance of counsel. Given the lack of evidence to support the defense theory that inadequate medical care wasthe sole cause of McIntosh's death, any request for a pinpoint instruction on this issue would have been unavailing. Moreover, even if the court had given this pinpointinstruction, the result would not have been more favorable to Gomez. Ogan determined that the cause of McIntosh's death was a blood clot that blocked the flow of blood and madeit impossible for McIntosh to breathe. The doctor’s testimony that the blood clot was caused by “complications ofthe unlawful homicide, even if; [{] One the person injured had been already weakened by disease, injury, physical condition or other cause; [{] Or, two,it is probable that a person in sound physical condition injured in the same way would not have died from the injury; [{] Or, three, it is probable that the injury only hastened the death of the injured person; [{] Or, four, the injured person would have died soon thereafter from another cause or other causes.” 22 gunshot wound to [McIntosh’s] pelvic region” established that Gomez’s conduct was a substantial factor in causing McIntosh’s death. In contrast, there was no evidence to support the defense theory that the decision to release McIntosh wasso grossly negligent as to be the sole cause of his death." B. Jury Question Regarding Second Degree Murder Gomezarguesthatthe trial court erred in its response to a question posed by the jury during its deliberations. We disagree. During its deliberations, the jury sent out the following note seeking clarification: “[R]egarding CALJIC 8.20 [first degree murder] . . . if the act of shooting resulted in a murder and the premeditation wasthe act of shooting, does this imply a premeditation of murder when murder wastheresult not the intent?” The court provided the jury with a typewritten response that first addressed the premeditation or “intent to kill” element of first degree murder: “Under the premeditation and deliberation theory offirst degree murder described in CALJIC 8.20 the defendant must have express malice that is, a manifest intent to kill, as well as premeditation and deliberation before acting.” The court then went on to describe the interplay between the lack ofintent to kill and second degree murder: “If you find that the defendant intended to shoot, but did not have the intent to kill, then the resulting death would be a second degree murder onthis theory if youfind that the death was a natural and probable consequenceofthe shooting. Please consider this response only in connectionwith all of the jury instructions as a whole.” 'S Although Gomezcites People v. Roberts (1992) 2 Cal.4th 271 in support ofhis argument, this case actually undermines his point. In Roberts, defense counsel requested a pinpoint instruction to the effect that “if the medical care [the victim] received after the assault was so inadequate that it amounted to the sole cause of his death, then he was not the proximate cause of Gardner’s killing and wasnot liable for it.” (/d. at p. 311.) The court’s refusal to give this instruction was upheld because,as here, “the record is devoid of any evidence of grossly impropertreatment. .. . The jury need not be instructed on a theory for which no evidence has been presented. [Citation.]” (/d. at pp. 312 -313.) 23 Gomez contendsthatthetrial court’s statement regarding second degree murder was erroneous becausethe court did not include the entire definition of second degree murderin its response to the jury. Specifically, he argues that, because the court’s response to the jury’s question did not mention the third element of implied malice murder, namely that “the act was deliberately performed with knowledge of the danger to, and with conscious disregard for, humanlife” (CALJIC No. 8.31), the response “invited the jury to avoid the question of conscious disregard altogether and find appellant guilty of second degree murderregardless of whether or not he appreciated and disregarded the risk to humanlife inherent in his actions.” Heis incorrect. Penal Code section 1138’* imposes on thetrial court a mandatory “duty to clear up any instructional confusion expressed by the jury. [Citations.]” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on other grounds.) “This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficientto satisfy the jury’s request for information. [Citation.]” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) Thetrial court responded to a question about only one of the elementsoffirst degree murder—namely, premeditation. This response was appropriately tailored to the jury’s question. Moreover, the court explicitly stated that its response wasnot intended to encompassall issuesrelated to the crimesof first and second degree murder whenit instructed the jury to “consider this response only in connection with all of the jury instructions as a whole.” Gomez does not—indeed, cannot—argue that the court’s instructions with regard to first and second degree murder,eitherinitially or after the jury’s inquiry, were incorrect. His argumentinsteadis that the court was requiredto reinstruct the jury on the elements of second degree murder. In other words, defendant’s argumentis that the court '4 Al further statutory references are to the Penal Code, unless otherwise noted. 24 was precluded from answering the jury’s question about an elementofthese crimes withoutalso reinstructing the jury as to all of the elements of these crimes. In fact, the court did makeclear to the jury that its response was intended to supplementrather than supplantits earlier instructions. By charging the jury with the responsibility of considering the instruction as a whole, the court ensuredthat the jury would not misconstrue its response as revising rather than clarifying the earlier instructions. The jury sought an answerto a limited question. It was given one. Therefore, it is unlikely it would have considered the court's response as redefining the elements of second degree murder. Wereject defendant’s argument. C. Threats to Witnesses Gomeznext argues that the trial court erred in permitting Oscar Menendez, Jorge Sanchez, and Luis Ruelasto testify about threats they received before theytestified. However, Gomez also concedes that, under Evidence Code section 780 and Peoplev. Mendoza (2011) 52 Cal.4th 1056, 1084-1086, such evidence is admissible to assist in the assessment of a witness's credibility and instead argues that, under federal law, the evidence was inadmissible. (Dudley v. Duckworth (7th Cir. 1988) 854 F.2d 967, 971- 972.) As defendant acknowledges, we are bound to follow our Supreme Court’s ruling on this issue and, therefore, reject this argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) D. ‘Instructions Regarding Testimony ofMenendez, Cervantes, Valencia and Ruelas 1. Menendez Defendants argue that the trial court erred whenit rejected defendant Gomez’s request that the court instruct the jury that Menendez was an accomplice as a matter of law and, instead, allowed the jury to determine whethercertain witnesses were accomplices.'> Accordingly, defendants take issue with a numberofinstructions given '® The People correctly point out that Elizalde has waived any objectionto thetrial court’s ruling that Menendez, Ruelas, Sanchez, and Valencia were not accomplices as a 25 by thetrial court regarding the jury’s consideration of whether certain witnesses were accomplices. Theseinstructions include the direction that “[t]he defendant has the burden of proving by a preponderance ofthe evidence that each of the following witnesses was an accomplice in the crimes charged against the defendants: [{]] Victor Cervantes [{] Oscar Menendez [{] Luis Ruelas [{] Larry Valencia.” The court also instructed the jury pursuant to CALJIC No.3.14 that “[mlJerely assenting to or aiding or assisting in the commission of a crime without knowledge of the unlawful purpose ofthe perpetrator and withoutthe intent or purpose of committing, encouraging orfacilitating the commission of the crimeis not criminal. Thus a person who assentsto,or aids, or assists in, the commission of a crime without that knowledge and without that intent or purposeis not an accomplice in the commission of the crime.” Generally, the issue of whether a witness is an accomplice is a factual question. Only whenthere is no dispute as to either the facts or the inferences reasonably to be drawn from the facts would the court find a witness an accomplice as a matter of law. (People v. Fauber (1992) 2 Cal.4th 792, 834; People v. Rodriguez (1986) 42 Cal.3d 730, 759 (Rodriguez.) Section 1111 defines an accomplice as a person whois liable to prosecution for the identical offense for which the defendantis being tried. In Menendez’s case, his responsibility for McIntosh’s death would have been as an aider and abettor since Gomez rather than Menendez wasthe shooter. (People v. McLain (1988) 46 Cal.3d 97, 106 [§ 1111 covers all principals to a crime, including aiders and abettors].) Menendez’s presenceat the scene, his failure to prevent McIntosh’s murder and evenhis assistance to Gomez and Mota with knowledge of their criminal purpose (of which there was no evidence) would not be enoughto support a finding that Menendez was an accomplice as a matter of law. (Rodriguez, supra, 42 Cal.3d at p. 760.) Menendez would only be an matter of law. Elizalde told the court that he would “rather leave it [the determination of whether these witnesses were accomplices] up to the jury... .” Nevertheless, we consider this issue becauseit has also been raised by Mota. 26 accomplice as a matter of law if the evidence was undisputed that Menendez shared Gomez and Mota’s criminal purpose. (People v. Sully (1991) 53 Cal.3d 1195, 1227.) In fact, there was considerable evidence in the record that Menendez did not even realize that Gomez and Mota intendedto look for and kill Nortefios, much less share their criminal purpose.'° Menendeztestified that at the time McIntosh was murdered he had not committed to being a Varrio Frontero Loco, not wanting that “for my future.” He wanted only to be with girls and go to parties with the gang members, “but . . . didn’t like the rest that they used to do.” Although he knew that gang membersattacked Nortefios, he himself was never asked to join in. Menendez knew that the Nortefios were the Varrio Frontero Loco’s rivals. Menendez knew what areas were Nortefio territory. He also knewthat if a Varrio Frontero Loco found a Nortefio or saw one he wasto “{b]eat him up and if you have a gun you haveto use it.” He did not, however, think that he was expected to hunt Nortefios. When he went with Mota and Gomez on April 13, 2008, which wasthe day he shot himself by accident, he did not know that they were looking for Nortefios to kill. Nor did he think that was the case on April 26, 2008. He did not realize that they were looking for Nortefios to kill until the car did not turn toward the McDonald’s on Broadwayas he had expected. Menendez’s testimony that he neither wished nor was expectedto join in the violence against Nortefios, along with his testimony that he was unaware that Gomez and Mota intended to shoot anyone the night McIntosh was murdered or on the earlier occasion when he (Menendez) wasaccidentally shot, created a factual dispute as to '© Thetrial court specifically found that Menendez’s “version of events that when he first shot himself that is because he was grabbing the gun out of the hands of whoever was holding it to prevent him from shooting someone. On the second occasion he didn’t know that anyone had the gun until Mr. Gomez pulled it out and started shooting. [§] So my view is if the jury accepts Mr. Menendez’s version of events,it is not as a matter of law that he is an accomplice. That is a factual dispute the jury must decide. [{]] And I am essentially finding the samethingasto all of the onesI listed in the instruction saying that the defense has the burden of proving it by a preponderance.” 27 whether he was an accomplice. The court, therefore, properly put this matter before the jury. Gomezarguesforthe first time on appeal that the People were judicially estopped from opposing his argumentthat the court should instruct the jury that Menendez was an accomplice as a matter of law because they hadearlier obtained an indictment that stated that Menendez “went hunting for Nortefios with [Gomez] and Mr. Mota and that Mr. McIntosh was killed with Mr. Menendez’s gun... .” The application ofjudicial estoppel is discretionary. (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1468). Because Gomez did not requestat trial that the court exercise its discretion in this regard, he has forfeited this argument on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353; People v. Williams (1998) 61 Cal.App.4th 649, 655.) In any event, the trial court would surely not have granted such a request. The court has the discretion to impose this remedy “ ‘ “when a party’s inconsistent behavior 999 99will otherwise result in a miscarriage ofjustice. (Levin v. Ligon, supra, 140 Cal.App.4th at p. 1468.) The People did not engagein inconsistent behavior. The indictmentdid not allege that Menendez was an accomplice as a matter of law. Atbest, it contains language that could support such an argument. The record contained ample evidenceto the contrary andthetrial court properly madeits decision based on this evidence. | 2. Cervantes There waslittle evidence that Cervantes conspired with Varrio Frontero Locoto kill Nortefios or that he was otherwise involved in any of the crimes committed by defendants. Cervantes testified that he gave Molina a ride homeafter he got out ofjail and spoke to himaboutthe killing of an unnamed Nortefio. Although there was evidence that Cervantes was a member of Mexican Locos, there was no evidencethat he shared Mota or Elizalde’s intention to kill Nortefios in orderto increase the stature of Varrio Frontero Loco in the community. Therefore, the trial court properly left to the jury the question of whether Cervantes was an accomplice. 28 3. Valencia There wasalso a factual dispute about whether Valencia was an accomplice to the Perez murder. Menendeztestified that he did not think Valencia was even a gang member. Valenciatestified that he was not a gang memberand only wentin the car with Azamarafter they encouraged him to do so. Valencia was aware that they had driven into Nortefio territory, but he had never seen anyonekilled before. In fact, he asked to be driven homeafter the murderrather than join in the bragging and celebration that followed. The fact that Valencia was present at the scene and did not prevent the Perez (and there wasnot) that he assisted Mota and Molina in the murder, this would not be murderis insufficient to make him an accomplice. Moreover, even if there was evidence sufficient for a finding that he was an accomplice. (Rodriguez, supra, 42 Cal.3d at p. 760.) Our review ofthe record reveals that the trial court did not have before it undisputed evidence that Valencia shared Gomez and Mota’s criminal purpose. (People v. Sully, supra, 53 Cal.3d at p. 1227.) Therefore, it was not required to instruct the jury that Valencia was an accomplice as a matterof law. 4, Ruelas Ruelas, like Elizalde, was not present at any of the murders. In addition,thereis no evidencein the record directly linking him to any of the crimes committed by defendants. His complicity in these crimes would, therefore, be as a co-conspirator. There was conflicting evidence about whether Ruelas had assumeda co- conspiratorrole in “bringing the hood back.” Ruelas appeared to be an important member of Varrio Frontero Loco. Sancheztestified that, in terms of the hierarchy of Varrio Frontero Loco, Elizalde was the leader, and Sanchez wasdirectly under him along with Mota, Ruelas, and several others. According to Sanchez, Ruelas was one of the Varrio Frontero Loco who were “going to bring them back . . . just the ones whogotto take care of everything.” Menendez also named a number of Varrio Frontero Loco as those with the most respect in the gang. Ruelas was among them. Elizalde also would 29 send Ruelas out to collect debts using violence. Ruelas testified that violence was “an important part of bringing the hood back.” Ruelas himselftestified that he was a memberofVarrio Frontero Locofor six years until 2008. There was evidence, however, that Ruelas’s involvement in Varrio Frontero Loco was mostsignificant and committed before Elizalde assumed control. Ruelas did notlike Elizalde. Although Elizalde had given him an order to kill someone, Ruelas did not do so because he was working as an informant and had agreed not to participate in the commission of any crimes. Given the factual dispute about Ruelas’s accomplicestatus, the trial court did not err in putting the question to the jury. 5. Prejudice Evenif the trial court did err in putting the accomplice questionto the jury,“[a] trial court’s failure to instruct on accompliceliability under section 1111 is harmless if there is sufficient corroborating evidence in the record. [Citation.] ‘Corroborating evidence may beslight, may be entirely circumstantial, and need notbe sufficient to establish every element of the charged offense. [Citations.]’ [Citation.] The evidenceis sufficient if it tends to connect the defendant with the crime in such a wayastosatisfy the jury that the accompliceistelling the truth. [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 370.) Wereject defendants’ argumentthat the witnesses’ testimony wasinsufficiently corroborated. First, with regard to Oscar Menendez, Menendeztestified that after he witnessed the McIntosh shooting, he did not want to join in Mota and Gomez’s celebration of the murder and asked them to take him home. He testified that when they arrived at his house, Mota told Menendezthat he was on parole and couldn’t have the gun. Mota told Menendezto take the gun. This testimony wascorroborated by San Pablo Police Detective David Hoff, who testified that he did in fact find the gun used in the McIntosh shooting in Menendez’s bedroom. Menendez’s description of the way in which McIntosh was approached wasalso corroborated. Menendeztestified that when Mota spotted Rico McIntosh, Gomez asked him “if he is a buster.” McIntosh’s friend 30 Lorry Scherrertestified that McIntosh told her after the shooting that he had been approachedby three people whoasked him if he was a “buster” before they shot him. San Pablo Police Officer Matthew Spanneralsotestified that McIntosh told him that he wasasked if he was a “buster” before he was shot. The testimony of Hoff, Scherrer and Spannerprovide sufficient corroboration of Menendez’s testimony. Second, Victor Cervantestestified that when he picked Molina up from jail, Molina told him that he had been released because he had been caught with a gun that was not the murder weapon. Molina also told him,in effect, that he and Romero had murdered Centron. Molina’s telephonecalls to his mother in which he made the same admission adequately corroborate Cervantes’s testimony. Third, Luis Ruelas’s testimony that Molina told him that he had killed Centron wascorroborated by the sametelephonecalls to his mother that corroborated Cervantes’s testimony. Finally, Valencia testified that when Camacho gotout of the car he said to Luis Perez “Show me your hands, show meyour hands.” When Perez yelled “[w]hat the fuck is going on?” Camacho immediately shot him. This was corroborated by a neighbor who heard the confrontation, Ganehin Saele. Saele testified that she heard someone say “what the fuck?” and then heard gunshots. E, Batson-Wheeler Mota contendsthat, in exercising a peremptory challenge against Juror Number5, the only African-American juror on the panel, the prosecutor violated his right to a trial by a jury drawn from a representative cross-section of the community, a right guaranteed under both the California Constitution (article I, section 16) and the Fourteenth Amendmentofthe United States Constitution. Heis incorrect. 1. Factual Background After the prosecutor exercised a peremptory challenge to Juror No. 5, defense counsel moved for a mistrial under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson vy. California (2005) 545 U.S. 162 (Johnson). 31 Defense counsel told the court that Juror No. 5 would be the only African- American seated on the jury. According to counsel, this juror had “27 years of military experience. Hedid not indicate anybiases, and I believe that he is being relieved because of his race.” The court asked the prosecutor to respond “to the issue of a prima facie showing.” The prosecutor offered the following response: “TI do not believe there is any prima facie showing,and this is why: I worked extremely hard to rehabilitate a juror named [Mr. P.]. [§] Mr. [P.] was actually seated next to [Juror No. 5] last week when he cameinto the box immediately in front of [Juror No. 5]. [§] Mr. [P.] was an African- American male about the same age as [Juror No. 5], and I liked a lot of things about Mr. [P.], including his job along with his wife’s experience as an emergency room nurse. [{] Unfortunately, as you mayrecall, I worked hard to rehabilitate him, andhesaidthat I had gotten him from the defense starting on the 30 yard line up to the 45. [§]] He was close to not being for cause, but I didn’t do myjob well enough, I suppose, and he ended up being a for cause challenge made by Mr. Morton and Ms.Bethards. [§[] That was an African-American juror that we lost, who[m] I was perfectly satisfied with. [§]] On the other hand, I don’t believe I need to give my reasonsat this point, because you haven’t made a primafacie case, but I do think the fact that I worked hard to rehabilitate one African-American juror, was not able to do so, cuts directly against any argumentthat there is a primafacie case of discrimination based on race in the People’s peremptory challenge, or voir dire strategy.” Defendants argued that the People’s effort to rehabilitate an African-American juror wasinsignificant in light of the fact that Juror No. 5 was a candidate who was “completely neutral.” The court ruled that defendants had failed to make a prima facie case. The court explained that, under the standard articulated in Johnson, supra, 545 U.S. 162,'" “I do '’ The court correctly summarized that standard as requiring an inquiry into “whether the defendant has shown based onthe totality of the relevant facts that those 32 not believe the facts as [a] totality before me would suggest that inference is appropriate. [§]] I do understand . . . that a person of the African-American race is within a cognizable group, and I do know that the law .. . permits a finding of . . . a prima facie case on the basis of a single strike of that group. So it’s not a numericalissue, it’s the conduct of the voir dire as a whole.” The court also noted that “I do think that [Juror No. 5] is thefirst African-American whohas been in the box for purposes of peremptories. [{]] We have had other African-American potential jurors, but they have been excused for cause or hardships. [{]] The record would reflect that so far [Juror No. 5] is the only African- American in the box as I have indicated; that the defendants are of Hispanic descent, to the extent that may or maynotbe relevant, but, in any event, I don’t find a primafacie case, but you maystate your reasonsfor the record,”!8 The prosecutor stated “for the record”that “there are a lot of good things about [Juror No. 5], including his military service. Unfortunately, the main part of his military service was serving as a substance abuse counselor. . . . [A]lmost as a general rule, am not going to leave counselors or psychiatrists on a criminal jury. [{[] On top of that,I specifically questioned [Juror No. 5] about this, a substance abuse counselorin his position worked with almost, I think he said, almost 90 percent of his work had been involved in criminal activity and had been accused or convicted for drug activity. Somebody that works with felons or convicted misdemeanants or convicted felons on a daily basis is not someone I want on a criminal jury of any sort, no matter what color, what creed, what race they are.” The court then excused Juror No. 5. Defendants now arguethatit erred in so doing. Wedisagree. facts give rise to an inference of discriminatory purpose or whetherthe evidenceis sufficient to permit the trial judge to draw an inference that discrimination has occurred.” '8 Although we concludethat, becausethe trial court correctly foundthat no prima facie case had been shown,the prosecutor’s explanation ofhis rationale for excluding Juror No. 5 is not relevant to the question of whether there a prima facie case has been made, we nevertheless include this information in order to discuss that issue. 33 2. Discussion Weapply certain well-established principles in deciding this issue. “[T]he use of peremptory challenges by a prosecutorto strike prospective jurors on the basis of group membership violates the right of a criminal defendanttotrial by a jury drawn from a representative cross-section of the community underarticle 1, section 16 of the California Constitution.” (People v. Alvarez (1996) 14 Cal.4th 155, 192; see also Wheeler, supra, 22 Cal.3d at p. 272.) This discriminatory use of peremptory challenges similarly violates the defendant's federal constitutional right to equal protection. (Batson, supra, 476 U.S. at pp. 84-89.) [{] We presume the People use their preemptory challenges in a constitutional manner. (Wheeler, supra, 22 Cal.3d at p. 278; People v. Alvarez, supra, 14 Cal.4th at p. 193.) Forthis reason, the defendant bears the burden ofestablishing a prima facie case of purposeful discrimination. (People v. Arias (1996) 13 Cal.4th 92, 134-135; People v. Gutierrez (2002) 28 Cal.4th 1083, 1122; People v. Alvarez, supra, 14 Cal.4th at p. 193.) To do so, the defendant mustraise this issue “ ‘ “in timely fashion and make a primafacie case of such discrimination to the satisfaction of the court. First, .. . he should make as complete a record of the circumstancesas is feasible. Second, he must establish that the persons excluded are membersof a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstancesofthe case he must showa strong likelihood [or reasonable inference] that such persons are being challenged because of their group association... .”’ (2000) 23 Cal.4th 1153, 1187-1188, disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948,fn. 10.) [Citations.]” (People v. Box Whenweconcludethatthe trial court correctly ruled that a defendant failed to show a primafacie case ofpurposeful discrimination, we do not “review the adequacy of 2 99counsel’s justifications for the peremptory challenges.’ (People v. Box, supra, 23 Cal.4th at p. 1188.) The fact that a prosecutor is permitted to make a record ofhis justifications for exercising a peremptory challenge does not changethis basicrule. (Ibid.) 34 On appeal, we must determine whether substantial evidence supportsthetrial court’s conclusion. (People v. McDermott (2002) 28 Cal.4th 946, 970.) Becauseit does, wereject defendant’s argument. Here,the trial court found that defendant failed to make out a primafacie case of discriminatory intent. Substantial evidence supports the court’s conclusion that the totality of the relevantfacts did not “giverise to an inference of discriminatory purpose.” First, the fact that the People made an effort—anda vigorousone at that—to rehabilitate another African-American juror points to the People’s lack of a “discriminatory purpose” in its exercise of a peremptory challenge to Juror No. 5. Simply put, if the prosecutor had such a purpose, we would not expect the prosecutor to make a case against excusing a different African-American juror. The People also point out that the prosecutor earlier passed on jury that actually contained Juror No. 5. The prosecutor did not actually exercise a peremptory challenge against Juror No. 5 until a juror on the original panel had to be excused andjury selection resumed. Although more than one inference can be drawn from the fact that the prosecutor had earlier passed on Juror No. 5 and did not excuse him until jury selection was reopened, one reasonable inference—andthe inference the trial court made—isthat the prosecutor was not concerned with the race ofjurors in his selection decisions. Substantial evidence, therefore, supports thetrial court’s finding that defense failed to make out a prima facie case of discriminatory jury selection. » Defendants, however, argue that, when we take into account the prosecutor’s “for the record” explanation for his prima facie challenge, an explanation the trial court '? Defendants correctly argue that their burden of making out a primafacie case can be met even as to a single peremptory challenge to an African-American juror. (People v. Thomas (2011) 51 Cal.4th 449, 474.) However, although the People argue to the contrary, the trial court did not base its conclusion that no prima facie case was shown on the fact that the prosecutor only excused one African-American juror. In any event, our review ofthe record indicates that substantial evidence supports thetrial court’s conclusion. 35 correctly observed wasirrelevant to its determination of whether defendant had made out a prima facie, we mustfind that the trial court erred. We disagree. A trial court does not scrutinize a prosecutor’s explanation for his exercise of a peremptory challenge until after it concludes that the defendant has madeout a prima facie case of discrimination. Thetrial court’s prima facie ruling here was explicitly—and correctly—notbased onthe prosecutor’s stated rationale, which cameafter the court madeits ruling. We do not consider such a statement when we ask whether substantial evidence supportsthe court’s ruling on the question of whether defendants had mettheir primafacie burden. (People v. Box, supra, 23 Cal.4th at p. 1188, disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10; People v. Davenport (1995) 11 Cal.4th 1171, 1200, abrogated on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) Thus, while we consider the “entire record of voir dire” in our review (People v. Box, supra, 23 Cal.4th at p. 1188), once we “ ‘conclude[{]that the trial court properly determined that no prima facie case was made, [we] need not review the adequacy of counsel’s justifications for the peremptory challenges.’ [Citation.]” (/bid.) The cases on which defendants rely in making the contrary argument involve situations in whichthetrial court had either explicitly or implicitly found thatthe defendant had madea prima facie case. These inapposite cases, therefore, are not helpful to defendants. In Kesser v. Cambra (9th Cir. 2006) 465 F.3d 351, 360, the court implicitly found that defense counsel had madeout a primafacie case of discrimination and was, therefore, concerned with the ultimate question of whether the lowercourt erred in finding that the prosecutor had not exercised his peremptory challenges in a discriminatory way. Similarly, in Crittenden v. Ayers (2010) 624 F.3d 943, 950 (Crittenden), the court registered its agreement with the California Supreme Court’s earlier decision in the matterthat “Crittenden made a prima facie showing of discrimination and that the state carried its burden ofarticulating a race-neutral justification for the peremptorystrike.” Crittenden, therefore, does not support defendants’ argument regarding thetrial court’s analysis of the record at the prima facie 36 stage. Finally, in Johnson v. Vasquez (9th Cir. 1993) 3 F.3d 1327, 1329, footnote 2 (Vasquez), the court announcedthat it “need not address the question whether Johnson offered prima facie evidenceof intentional discrimination [citation], because the prosecutor offered an explanation for the challenge, and the trial court ruled on the ultimate question of discrimination. [Citation.]” The Vasquez court, therefore, did not analyze the issue of whether the defendant had made out a prima facie case because the trial court had impliedly ruled that a prima facie case had been shown. Given that the defendant had methis burden, the court of appeal looked only at the “ultimate question of discrimination,” an inquiry that does involve scrutiny of the prosecutor’s explanation for his challenge. Here, in contrast to Kesser, Crittenden, and Vasquez, the trial court explicitly ruled that defendants had not met their burden of showing a prima facie case, and correctly did not consider the prosecutor's explanation for his peremptory challenge.”” Therefore, when we considerthis issue, we look only at the record before the trial court at the timeit madeits prima facie case ruling. F. Corroboration ofSanchez Testimony Mota also argues that Sanchez—whomthetrial court found was an accomplice as a matter of law—wasnot adequately corroborated as required by section 1111 and, therefore, the jury could not haverelied on it to reach its verdicts. We disagree. With regard to the Centron murder, Sanchez’s testimony regarding Molina’s role as the shooter was confirmed by Molina’s admission to his mother that he had,in fact, shot Centron. Sanchez’s testimony regarding the McIntosh murderto the effect that Motatold him he had shot someonethat night, was corroborated by the testimony of Detective David Hoff that he had found the gun Gomezusedin the shooting in Menendez’s bedroom. In addition, Contra Costa County Deputy Sheriff Criminalist Terreance Wong’s expert testimony that the gun recovered from Menendez’s bedroom *° The prosecutor’s decision to put these reasons “on the record,”following the trial court’s decision regarding the prima facie case issue does notalter this procedure. 37 was the weapon usedto shoot McIntosh corroborated Sanchez’s testimony regarding the shooting. Moreover, even if Sanchez’s testimony was not admissible, our review of the record indicates that there was ample evidence,particularly from the testimony of Menendez, Ruelas, Cervantes and Valencia to support defendants’ convictions. G. Admissibility ofMota's Booking Statements Regarding Gang Membership 1. Facts On May 3, 2008, after he was arrested, Mota was taken to the Contra Costa County’s Martinez detention facility. When an arrestee such as Mota first arrives at the detention facility, an “escort deputy” meets him and asks three questions. “They will ask them if they have been here before. That will aid the booking officer in bringing up their information. [§] They will ask them if they have any gangaffiliations so that they know ... where to put them once they comeinside of intake. [{] And then they will ask them if they have anyfears for their safety.” Ifa suspect reports any fear for his safety, requests protective custodyor if they belong to a gang “they will go into one of the rooms to await... the processing... .” Contra Costa County Sheriff's Deputy Michael Rector and Deputy Gonzalez,”’ were the “back door intake” deputies that evening andthe first deputies Mota encountered whenhearrived at the detention facility. Upon his arrival, Mota was put in a separate room. When Rector told Mota he was going to search him for contraband, Mota “began to laugh nervously.” Mota then said, “man, I’m in here for some shit that I didn’t do. They said that I killed someone, but it wasn’t me. I wasthere, but I didn’t kill anyone. The guythat didit is already in jail. He confessed already, but now heis trying to bring me down too....” Mota becameagitated andsaid, “I’m a gang banger, but I’m not a murderer.” He then told Rectorthat “JI told those other cops that I didn’t know anything becauseI thought I would be in trouble, but now I don’t care... .” Rector asked Mota if he wantedto talk to a San Pablo Police detective. Mota replied, “Yeah,I *! Deputy Gonzalez did nottestify. 38 will, but first I should talk to my lawyer. After I talk to him I will tell you guys what really went down... .” Rector did not ask Mota about his gangaffiliation. He did, however, understand that Mota was involved in a gang, based on earlier statements Mota had made to Deputy Gonzalez, who was working alongside him that evening. Mota’s statements struck Rector as important to the San Pablo Police Department, so he wrote up a summary ofthe conversation in orderto “assist them in their case.”” Following Rector and Gonzalez’s interaction with Mota, Deputy Bryan Zaiser, who workedin the facility’s classification unit, interviewed Mota. Hedid so because Mota appearedto be gangaffiliated. Zaiser would typically tell the arrestee that the classification questions were for an “administrative purpose,” and “for their housing.” Prior to the interview, Zaiser did not read Miranda warnings to Mota, did not advise him that he had a right to decline to answer the questions nordid hetell him he was required to answer the questions. Mota did not express any fear for his safety before the interview. Zaiserfilled out a classification questionnaire when he spoke to Mota. Zaiser indicated on the questionnaire that Mota identified himselfas “affiliated with the Surefio street gang,” and said he was “part of VFL, which is Varrio Frontero Loco,” and had been since he was 14 years old. According to Zaiser, Mota told him that he (Mota) was an active Surefio gang member. At the time he interviewed him, Zaiser was aware that Mota had been charged with murder.”* He did not know that Mota had been accusedofkilling a “suspected Nortefio.” *° Generally, when an arrestee identified himself as a gang member,the deputy would write a “classification incident detail report,” which would then be forwarded to a supervisor, who would forward the report to “the appropriate people.” °? Tt was commonfor the arresting agency(in this case, the San Pablo Police to bring with them “booking paperwork with the charges they are booking the inmate for.” 39 Zaisertestified that, because of the risk of harm to an inmate suspected of killing a Nortefio, he would not house that inmate in the general population, where Nortefios were housed. There was separate housing for Surefios. Each of the murder charges against Mota alleged an enhancementfor participating in a criminalstreet gang pursuant to section 186.22, subdivision (b)(1). He was also charged under section 182.5 with participating in a criminalstreet gang. Before trial, Mota moved to suppress his admission of gang membership. He argued that because the sheriff's deputies to whom he disclosed his gang affiliation knew or should reasonably have knownthat the questions abouthis gangaffiliation werelikely to elicit an incriminating response, they were required to give Miranda warnings before questioning him. The People contended that because noneofthe sheriff's deputies who discussed with Mota his gang status were actually aware that he had been charged with gang-related crimes, the questions he was asked werepart of a custodial interrogation for which no Miranda warnings were required. In admitting this evidence, the court made a numberoffactual findings. First, it foundthat “the sole purposeofthis interview and the form is to ensure the safety of inmatesandstaff at the county jail. The information gathered is essential to maintain security at the jail... . [§] . . . [I]f the jail were to house rival gang memberstogetherat random it would pose a grave security risk to both the inmates andthestaff. [{] So I find that it is a fundamental and essential obligation of the sheriff's department to determine whetherit is dangerous to house any inmate with any other inmate or any gang member with any rival gang member.” Thetrial court stressed that although Zaiser knew that Mota had been charged with murder, Zaiser was not aware of the gang enhancement and gang chargesalleged against Mota. The court found, therefore, that Zaiser “had no actual subjective intent to gather incriminating information.” The court also noted that Zaiser’s subjective intent was “not the standard butit is a relevant factor.” 40 Zaiser did not, in the court’s opinion, “use any coercivetactics, that is, no threats, no promises. There was no threat that if... Mr. Mota didn’t answer the questions, that he would be housed with Nortefios.” With regard to Mota’s understanding of the purpose of these questions, the court found “that Mr. Mota would have every reason to make sure that the deputies knew to house him with Surefios. It would be in Mr. Mota’s wholly personal interest in self-preservation that he be classified correctly. And it would be extreme dangerto hislife if he were notclassified correctly and housed with other Surefios. [{] So my view is that Mr. Mota would have wanted the deputies to know that he was a Surefio so his life would not be imperiled. And I believe he willingly and voluntarily answered the questions for that reason.” The court denied the motion to dismiss and Mota’s admission of gang membership was admitted at trial. The jury ultimately found Mota guilty of the street gang conspiracy charge and also found the street gang enhancementstrue as to the three charged homicides of which he was found guilty. 2. Discussion Mota contendsthat the trial court erred in denying his motion to suppress the statements he made duringhis classification interview. He arguesthat this interview constituted a custodial interrogation and, therefore, the law enforcement personnel he spoke with were required to read him his Miranda rights. Weagree. In Rhode Island v. Innis (1980) 446 U.S. 291 Unnis), the United States Supreme Court clarified what sort of police action constitutes a “custodial interrogation” that must be preceded by a Miranda warming. The /nnis court held that “ ‘interrogation’ under Mirandarefers not only to express questioning, but also to any wordsoractions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonablylikely to elicit an incriminating response from the 992:suspect.”*" CUnnis, supra, 446 U.S. at p. 301.) Accordingly, “[a] practice that the police ** The court also notedthat “[tJhe latter portion ofthis definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody 4} should know is reasonably likely to evoke an incriminating response from a suspect... amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their wordsor actions, the definition of interrogation can extend only to words or actions onthe part ofpolice officers that they should have known were reasonably likely to elicit an incriminating response.” (Innis, supra, 446 U.S.at pp. 301- 302.) Ten yearslater, in Pennsylvania v. Muniz (1990) 496 U.S. 582, 600-602 (Muniz), the court considered whether the Miranda safeguards cameinto play when a police officer asked a suspect in custody for—among other things—his “name, address, height, weight, eye color, date of birth, and current age... .” *5 In considering this question, the court began with the general rule set out in Jnnis, that “[c]ustodial interrogation for purposes ofMiranda includes both express questioning and wordsoractions that, given the officer’s knowledge of any special susceptibilities of the suspect, the officer knowsor reasonably should know are likely to ‘have. . . the force of a question onthe accused,’ [citation] and therefore be reasonablylikely to elicit an incriminating response.” The court then concluded that questioning a suspect about his name, address, height weight, eye color date of birth and current age fell “within a ‘routine booking question’ exception” to Miranda, an exceptionthat applies to questions asked in orderto secure the “ ‘ “biographical data necessary to complete booking or pretrial services.” ’ ” In reaching this conclusion, the court relied on the lower court’s with an added measureofprotection against coercive police practices, without regard to objective proofofthe underlying intent of the police.” (Innis, supra, 446 U.S.at p. 301.) *5 Although the United States Supreme Court consideredthis issue for the first time in Muniz, it noted that a numberof federal courts had previously found that “routine biographical questions” fell outside the scope ofMiranda. These cases were United States v. Glen-Archila (11th Cir. 1982) 677 F.2d 809, 815-816 (home address); United States v. Avery (6th Cir. 1983) 717 F.2d 1020, 1024-1025 (“subjects such as defendant’s date of birth and address”in order to complete an identification form which “did not relate, even tangentially, to criminal activity”) and United States v. Mata-Abundiz (9th Cir. 1983) 717 F.2d 1277 (background questions not asked during routine booking procedure anddirectly related to an element of crime the interrogating officer suspected of defendantdid not fall within routine booking exception). 42 factual finding that these questions “were ‘requested for record-keeping purposesonly,’ [citation] and therefore the questions appear reasonably related to the police’s administrative concerns.” (Muniz, supra, 496 U.S.at pp. 601-602.) Even before the United States Supreme Court decided Muniz, our Supreme Court, in People v. Rucker (1980) 26 Cal.3d 368, 387 (Rucker), held that “[t]he Miranda safeguards are not necessary at a proper booking interview at which certain basic informationis elicited having nothing to do with the circumstances surrounding any offense with which the defendant has been charged. [Citations.] The booking procedure, as defined by statute (Pen. Code, § 7, subd. 21), has been described as ‘essentially a clerical process.’ [Citation.] The limited information needed at a booking procedureis required solely for the purposes of internal jail administration, not for use in connection with any criminal proceeding against the arrestee. When use of this information is confined to those proper purposes,its elicitation cannot be considered incriminatory.” The Rucker court went on to hold, however, that although Miranda warnings “need not be given at a booking interrogation” intendedto elicit “from an arrestee the basic, neutral information that is necessary for properjail administration, [the state is forbidden to use] the arrestee’s responses in any mannerin a subsequent criminal proceeding.””° The court explainedthat “[iJt is not just the nature of the information revealed but the potential for incrimination underall the circumstances that is important. In the present case, appellant had been arrested for a homicide. Homicideis ‘ “an area permeated with criminalstatutes,” ’ and those arrested for murderare,for purposes of the privilege, ‘a group “inherently suspect of criminal activities.” ’ [Citation.] ... Evidence of an arrestee’s responses to booking questions can constitute ‘evidence which will facilitate [his] conviction[ ]’ unless its use is limited to the purposes for which it was °° Similarly, the court in United States v. Willock (D.Md.2010) 682 F.Supp.2d 512, 528-529, observedthat “[e]liciting information from an inmate about his gangaffiliation solely for prison administrative purposes does not implicate Miranda.It is only when such informationis used against the inmate in a prosecution that Miranda warnings are required.” (d. at p. 533, fn. 26.) 43 elicited. [Citation.]” (Rucker, supra, 26 Cal.3d at p. 389.) Although Rucker appears to have been superseded by Proposition 8 (People v. Herbst (1986) 186 Cal.App.3d 793, 799-800), the Rucker court’s definition of a routine “booking procedure”is consistent with that articulated in Muniz—a procedure designedto elicit “basic, neutral information.” (Rucker, supra, 26 Cal.3d at pp. 388-389.) Our Supreme Court very recently considered the booking exception in People v. Williams (2013) 56 Cal.4th 165 (Williams). In that case, a suspect in custody told a police officer during his intake interview that he needed protection because an unidentified inmate had threatened to stab him. (/d. at p. 183.) When oneofthe officers asked whyhehad been threatened, defendant responded “‘[bJecause I killed two Hispanics.’ ” (/d. at p. 184.) Another officer recalled asking defendant whathis crime was. The officer noted defendant’s statement that he had killed two Hispanics in an interview intake report that he did not provide to any investigating agency. (Jd. at p. 184.) The statement was ultimately used attrial against the defendant. The Williams court held that defendant's un-Mirandized admission that he had “killed two Hispanics”fell under the booking exception to Miranda. In so doing, the court cited the Jnnis court's definition of interrogation: “ ‘[T]he term “interrogation” under Mirandarefers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendantto arrest and custody)that the police should know are reasonably likely to elicit an incriminating response from the suspect... . [T]he Miranda safeguards were designed to vest a suspect in custody with an added measureofprotection against coercive police practices, without regard to objective proof of the underlying intent ofthe police. ... [S]ince the police surely cannot be held accountable for the unforeseeable results of their wordsoractions, the definition of interrogation can extend only to words or actions on the part ofpolice officers that they 2 99should have known were reasonablylikely to elicit an incriminating response.’ (Unnis, supra, 446 U.S.at pp. 301-302, fns. omitted.).”) (Williams, supra, 56 Cal.4th at pp. 186- 187.) 44 The court, citing People v. Gomez (2011) 192 Cal.App.4th 609, 630, then noted that the “governing considerations” in determining whether questions fall within the booking exception are as follows:“’ In determining whether a question is within the booking question exception, courts should carefully scrutinize the facts surrounding the encounter to determine whether the questions are legitimate booking questions or a pretext for eliciting incriminating information. [Citation.] Courts have considered several factors, including the nature of the questions, such as whether they seek merely identifying data necessary for booking [citations]; the context of the interrogation, such as whether the questions were asked during a noninvestigative clerical booking process and pursuant to a standard booking form or questionnaire [citations]; the knowledge and intent of the government agent asking the questions [citations]; the relationship between the question asked and the crime the defendant was suspected of committing [citations]; the administrative need for the information sought [citations]; and any other indications that the questions were designed,at least in part, to elicit incriminating evidence and merely asked underthe guise or pretext of seeking routine biographical information [citations].’ [Citation.]” (Williams, supra, 56 Cal.4th at p. 187.) The Williams court concluded that Williams’ “intake interview at Folsom Prison was closely analogousto the process of being bookedinto jail.” The court pointed out that not only did the officers have no intention ofeliciting an incriminating response, but the follow up questions they asked were not ones they should reasonably have expected to elicit an incriminating response. The court explained: “Whether it was White or Reed who asked defendant either ‘why are they going to stab you?’ (as White remembered), or ‘what his crime was’ (as Reed recalled), neither question was designedto elicit an incriminating response.” The officers were appropriately responding to defendant's own security concern, and would not reasonably have expected him to produce a confession. (Williams, supra, 56 Cal.4th at p. 188.) Turning nowto this case, we begin by noting thatthe trial court found that although the deputies were aware that Mota had been charged with murder, they were not specifically aware that, in addition to murder, Mota had been charged with an 45 enhancementand an additional crime based on his gang membership. Therefore, they did not ask Mota this question in order to elicit an incriminating response. However, as the trial court recognized, whether a particular question was intentionally designed by the police to evoke an incriminating responseis only one fact the court looksat in determining whether wordsoractions onthe part ofa police officer constitute an interrogation. Innis, Muniz and Williams all makeclear that an officer’s subjective intent in asking a question is neither the only fact nor the determinative fact the court should consider in determining whether a question falls within the booking exception. Therefore, even if a question was not intended to evoke an incriminating response,ifit was a question the officer should have reasonably expected to evoke such a responseit would fall outside the booking exception. Here, the deputy who asked Mota whetherhe belonged to a gang “should [have] know{[n]” that question was“reasonably likely to elicit an incriminating response... .” (Muniz, supra, 496 U.S.at p. 601.) Section 186.22, which imposes criminal penalties for participation in a criminalstreet gang, is part of the California Street Terrorism Enforcement and Prevention Act enacted in 1988. This enhancement had been in existence for more than 20 years before Mota was questioned,andit is unlikely that the deputy was unawarethat participation in a criminal street gang is a felony or that an affirmative answerto the question would be incriminating. Similarly, section 182.5, which imposes an additional penalty for conspiracy to commit a felony by active participants in a criminalstreet gang, was added by section 3 of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, which waseffective on March 8, 2000. In light of the length of time these laws had been on the books, a law enforcement professional should have knownthat an incoming inmate’s admission of gang membership could well be incriminating. It was also unlikely that the deputy would be unawareofthe possibility that Mota might be a gang memberandthusparticularly likely to give an incriminating response to this question. Thetrial court found that this facility housed a large population of gang members, so manythat they created a serious andrealrisk to the safety of inmates in 46 rival gangs as well as to the deputies themselves. A law enforcementofficial working in this milieu would not only be particularly likely to be aware of laws designed to deter such violence, he would also be aware that many inmates cominginto the facility might belong to gangs. In such a setting, the possibility that an inmate’s gangaffiliation might be incriminating was neither abstract nor remote. Therefore, the deputies should have knownthat asking for this information was reasonablylikely to elicit an incriminating response from Mota. And,of course, it did.”” Nordid this question seek “routine biographical information” that wouldfall within the booking exception to Miranda. Thenature of the information for whichthis exception is intended to apply is aptly demonstrated by the cases the Muniz plurality recognized as establishing this exception and by Munizitself. The pre-Muniz casescited by that court involve questions designed to gather “mere pedigree information”or “routine background information.” (United States v. Avery, supra, 717 F.2d at pp. 1024- 1025 [“subjects such as defendant’s date of birth and address”in order to complete the identification form which “did not relate, even tangentially, to criminal activity]; United States v. Mata-Abundiz, supra, 717 F.2d 1277 [background questions, which were not asked during routine booking procedure, were directly related to an element of crime the interrogating officer suspected of defendant did not fall within routine booking exception]; United States v. Glen-Archila, supra, 677 F.2d at pp. 815-816 (11th Cir. 1982) [home address]; see also United. States ex rel. Hines v. LaVallee (2nd Cir. 1975) 521 F.2d 1109, 1112-1113 [length of marriage and numberofchildren disclosed to officer in casual conversation was “merely basic identification”]; United States v. Burns (2nd Cir. 1982) 684 F.2d 1066, 1075 -1076 (Burns).) [“appellant’s history of drug use, °7Tn a similar case, United States v. Williams (D.D.C. 2012) 878 F.Supp.2d 190, 210, the court found that a question that related “directly to [the defendant’s] connection with evidence of criminal activity” did not fall within the booking exception, even if “the police may not have been fully aware”ofthe criminal activity of which the defendant was suspected. 47 | past record, and personal finances, cannot be characterized as mere pedigree” where they “could be incriminatingat trial’’].) Muniz, like the federal cases that preceded it, recognized a booking exception for the sort of information that is, except in unusual circumstances, not reasonably likely to elicit an incriminating response. One’s name, address, date ofbirth, length of marriage, numberof children seldom relate “even tangentially to a crime.” Nor would they generally be expected to incriminate a defendant. Here, in contrast, the fact that a suspect in custody is a memberof a gang often carries with it penal consequences. This information cannot be characterized as “mere pedigree” such as a name,address,or birthdate. (Burns, supra, 684 F.2d at p. 1076.) It “could be [and was] incriminating attrial” (ibid.) and, as such,is not routine background information ofthe sort that has been considered outside the Miranda safeguards. Norisit the case that a question falls within the booking exception simply becauseit is routinely asked during the booking process. As the court noted in United States v. Williams, supra, 878 F.Supp.2d at page 210, “the mere timing of the questionis insufficient to makeit a legitimate booking question.” Noris it the case that the characterization of this question as “administrative” makesit a routine booking question. As the court in Williams observed, “asking Maurice Williams how he hadarrivedat the policestation falls outside the routine identifying questions contemplated by the booking question exception. His modeof transportation on that particular day is not a personal identifying characteristic, nor was his answer necessary to serve a required property seizure receipt.” United States v. Washington (9th Cir. 2006) 462 F.3d 1124 (Washington) does not hold, as the People suggest, that the gathering of gang identification informationfalls outside the scope ofMiranda underthe routine booking exception. Although Washington involved a booking procedure in which that information was requested, the challenged evidence wasnot a defendant’s self-identification as a gang-member. Rather, the court considered a question that asked defendant for his “gang moniker,” or nickname. The court ruled that this question fell within the routine booking exception because “[q]uestions about a person’s identity are not unconstitutional even if 48 identification of the person may help lead to the prosecution of that person for a crime.” (d. at p. 1133.) Therefore, the court rejected defendant’s contention that his nickname should be suppressed, ruling that such a request “is no different from simply asking for a suspect’s name.” (/bid.) The question asked Mota was not comparable to the identifying questions the Washington court ruled did not constitute interrogation. Mota was not being asked to reveal his name when he was asked whether he belonged to a gang. And certainly the fact of gang membership is not “routine” identifying information. Therefore, Washington is of no assistance to the People. The People also point out that in People v. Gomez, supra, 192 Cal.App.4th 609, the Fourth District ruled that questions regarding gangaffiliation during a booking interview fell within the routine booking exception to Miranda because they were not designed to elicit an incriminating response. The Gomez court appears to have basedits conclusion on a footnote in Muniz, in which the court agreed with amicus United States that “ ‘[r]ecognizing a “booking exception” to Miranda does not mean, of course, that any question asked during the booking processfalls within that exception. Without obtaining a waiver of the suspect’s Mirandarights, the police may not ask questions, even during booking, that are designedto elicit incriminatory admissions.’ ” (Muniz, supra,496 U.S.at p. 602, fn. 14.) Muniz, however, does nothold that the only type of question asked during booking that falls outside the routine booking exception is one whichis “ ‘designedto elicit incriminatory admissions.’ ” (Muniz, supra, 496 U.S.at p. 602, fn. 14.) Were this the case, the court’s language regarding questions the police “should know” mightelicit an incriminating response would be meaningless, given that something an officer “should know”is something he did not, in fact, subjectively know. (/d. at p. 601.) The Gomez court recognizes that often an officer’s subjective intent is quite relevant to this issue. Indeed, it is determinative in those situations in which the officer clearly designed the question with an interrogative intent. But even if an officer does not intendto elicit an incriminating response, and has not designed the question to do so, a question canstill 49 constitute interrogation subject to the Miranda protectionsif the officer should have known this question was reasonably likely to elicit an incriminating response. Whenanswering this question, Mota had two choices. He could either admit to gang membership and incriminate himself or he couldlie or refuse to answer the question and risk physical injury when he was housed with Nortefio inmates.** We know of no other case involving the routine booking exception where the defendant was asked to choose between incriminating himself or risking serious physical injury. The price of protecting oneself from harm while in custody should not be incriminating oneself. Thisis notto say the question cannot or should not be asked. We fully expect the police to continue to use it upon booking in orderto protect jail personnel and inmates from harm. Wehold only that the answerto this question may not be used against the defendantat trial, as it was here, in the absence ofMiranda warnings. 3. Prejudice Thetrial court’s error in admitting this testimony was, however, harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, because Mota’s gang membership was convincingly established by many other sources. Ruelas, Sanchez and Menendezalltestified that, based on their familiarity with Mota as fellow gang members and/or friends, Mota was a memberofVarrio Frontero Loco. In addition, San Pablo Police Officer Robert Brady, whotestified as an expert oin Nortefio and Surefio criminal street gangs, opined that Mota was a gang member. He did so based on information he had received from other gang members. He also based his opinion on a *8 Thetrial court specifically found that “[t]here was no threatthat if... Mr. Mota didn’t answerthe questions, that he would be housed with Nortefios.” But there was no need to makethis threat. It was a fact that if Mota did not answerthis question he would be housed with Nortefios. As the court found, “Mr. Mota would have every reason to make sure that the deputies knew to house him with Surefios. It would be in Mr. Mota’s wholly personal interest in self-preservation that he be classified correctly. And it would be extreme dangerto his life if he were not classified correctly and housed with other Surefios. [{]] So my view is that Mr. Mota would have wanted the deputies to know that he was a Surefio so his life would not be imperiled. And I believe he willingly and voluntarily answered the questions for that reason.” 50 2005 robbery Mota had committed in Willows in which Mota wore a blue bandana(the Surefio color). When he was committed to county jail following his arrest for this robbery, he was observed “throwing up” a hand sign that signified his Surefio status. Finally, in photographs taken of Mota at Victor Valencia’s funeral, Mota made similar gang signs. Because Mota’s gangaffiliation was amply established by evidence other than the statements made by him during booking,anyerror is harmless beyond a reasonable doubt. H. Unjoined Perpetrators ofSame Crime Defendants argue that the trial court erred in giving the jury CALJIC No. 2.11.5. The instruction is as follows: “There has been evidencein this case indicating that a person other than a defendant was or may have been involvedin the crime for which that defendantis on trial. [§] There may be many reasons whythat personis not here ontrial. Therefore, do not speculate or guess as to why the other person is not being prosecuted in this trial or whether[he] [she] has been or will be prosecuted. Your sole duty is to decide whether the People have proved the guilt of the defendantontrial.” The use note to this instruction states: “Do not use this instruction if the other person is a witness for either the prosecution or the defense.” Defendants argue that this instruction permitted the jury, when evaluating the credibility of the five informant witnesses, to ignore the fact that they wereall given deals of one kind or another. The issue of whether it was error to give this instruction in trial in which unjoined coperpetrators testified was addressed most recently in People v. Fonseca (2003) 105 Cal.App.4th 543 (Fonseca). In that case,the trial court gave the 1996 version of CALJIC No. 2.11.5”” The court held thatthis iteration of the instruction removed any °° The Fonseca court noted that the cases findingit was error to give this instruction in a trial in which an unjoined coperpetratortestified involved earlier versions of CALJIC No.2.11.5. (Fonseca, supra, 105 Cal.App.4th at p. 548.) In addition, the Fonseca court noted that even whenthere wasa finding oferror as to the earlier version of CALJIC NO.2.11.5, “in every case where the jury receives all otherwise appropriate general instructions regarding witness credibility, there can be no prejudice from jury 51 “lingering possibility that a reasonable juror would misunderstandhis or her duty to considerall relevant factors bearing on witness credibility. Therefore, we hold that CALJIC No. 2.11.5, in its 1996 version, is not erroneous when givenin trial where an unjoined coperpetratortestifies.” (Fonseca, supra, 105 Cal.-App.4th at p. 550.) Thetrial court in this case gave the 2004 version of CALJIC No. 2.11.5, which wasrevised to incorporate the Fonseca court’s suggestion that the “the 1996 instruction would get closer to the heart of the matterif, instead oftheitalicized words"! the phrases ‘speculate upon’ or ‘guessat,’ or wordsto that effect were substituted.” The jury in this case, therefore, was instructed with a version of CALJIC No. 2.11.5 that would not suggest to a juror that he no longer had a “duty to considerall relevant factors bearing on witness credibility.” (Fonseca, supra, 105 Cal.App.4th at p. 550.) We agree with the Fonseca court’s reasoning regarding this instruction and, therefore, reject defendants’ argumentthat the trial court erred in givingit. I. Post-Crime Jail Incidents Used to Establish Gang Membership Several weeksafter he was incarcerated, and about a month after the last charged homicide, Mota wasinvolvedin an incident in which he and Luii Hernandez attacked Jorge Sanchez, one of the informants in this case, shortly before the end of“free time” in the Q module, where Surefios are housed. After the fight, Sanchez was separated from instruction pursuant to CALJIC No. 2.11.5. In other words, the potentially prejudicial effect of this instruction in the context of the testifying unjoined coperpetratorlies not in the instruction itself, but in the rather remote possibility that the trial court wouldfail to give otherwise pertinent and required instructions on the issue of witness credibility. (§ 1127; see also CJER Mandatory Criminal Jury Instructions Handbook (CJER,11th ed. 2002) §§ 2.4, 2.96, pp. 13, 76.) There is noerror in giving CALJIC No. 2.11.5 so long as a reasonable juror, considering the whole of his or her charge, would understandthat evidence of criminal activity by a witness not being prosecuted in the currenttrial should be considered in assessing the witness's credibility. [Citation.]” (Fonseca, supra, 105 Cal.App.4th at pp. 549-550.) Defendant does not arguethat the trial court failed to give these “otherwise pertinent and required instructions on the issue of witness credibility.” °° Theitalicized words to which the court referred werethat the jury not “discuss” or “give any consideration” as to why the unjoined coperpetrator was not being prosecutedin the trial. (Fonseca, supra, 105 Cal.App.4th at p. 548.) 52 Mota and Hernandez and not“let out” with the Surefios again. Eventually, Sanchez reached a deal with the prosecutor and entered a witness protection program. Defense counsel sought to have evidenceof this fight excluded. The prosecution argued that the evidence was admissible to show Mota acted “in concert with other gang members to accomplish certain goals.” Thetrial court ultimately admitted evidence of the fight between Sanchez, Mota and Hernandez. It found that the May 24 incident was “relevant to Mr. Mota’s gang membership, his conduct and participation in these crimes on behalf of the gang. Soit’s relevant to gang membership and motive andintent for the charged crimes.” He explainedthat “[Evidence Codesection] 1101(b) would permit admission ofthis .. . becauseit’s proof of motive and intent.” In addition, “the fact that it’s one monthlater [than the last homicide committed before Mota’s arrest] in my view was not so remote to makeit irrelevant.’””' Jorge Sancheztestified about the fight.°? According to Sanchez, after he was arrested, he was placed in the Q module, where Surefios were housed. During free time, Mota and Hernandez approached him. Mota hit him in the head and Sanchez fought back. The deputy maced them and Sanchez got on the floor when the deputy told him to. Motadid not. Instead, he got on top of Sanchez, who fought back again. After this incident, Mota was “rolled up to B module.” He explained that this occurred “just so you ain’t no good no more.” Sheriff's Deputy Jesus Garcia testified that on May 24, 2008, he was assigned to the Q Module at the Martinez Detention facility. Mota, Hernandez and Sanchez werelet out with the other Surefios on the Q Module. Although the Q Module housed “a variety 3! The court ruled that an admission Mota madeafterthe attack to the effect that he had “done the beatings and that he wasstill down on Surefios in the sense that he could still be housed with Surefios ” was not admissible because it was not preceded with Miranda warnings. >? Sanchez testified without objection before the court’s ruling on this issue. Any claim of error with regard to the admission ofhis testimonyhas, therefore, been waived. In anticipation of an ineffective assistance of counsel argument, we nevertheless consider whether Sanchez’s testimony, which was similar to that of Deputy Garcia, was admissible. 53 of administrative segregation inmates as well as protective custody inmates,” Surefios were let out “alone by themselves.” Motacontends that evidence that he and another Surefio gang memberattacked a Surefio informant while they were in jail was not relevant to the issue of whether he was an active participant in a criminal street gang at the time the crimes in this case were committed because Mota could have joined the Surefios gang after he arrived in prison and as a matterof self-preservation or camaraderie. He further argues that the admission of this evidence wasnot permitted undereither section 186.22 or the street gang enhancement because evidenceofpost-crime activities cannot be used to show a violation of that statute. Finally, he argues that the admission of this evidence violated Evidence Codesection 1101, subdivision (b), because it was used solely to show his bad character. Wedisagree. “We apply the deferential abuse of discretion standard when reviewinga trial court’s ruling on a relevance objection.” (People v. Kipp (2001) 26 Cal.4th 1100, 1123.) “ ‘“Fvidence is relevant if it has any tendency in reason to prove or disprove a disputed fact at issue.’ [Citations.]” (/d. at p. 1123.) Evidence of Mota’s participation with another Surefio in an attack on a “snitch” was relevant to the issue of whether he was a gang memberat the time the murders were committed. The fact that he acted in concert with another gang memberwasalso relevant to the issue of whether in committing the charged crimeshe intended to “willfully promote[], further[], or assist{] in any felonious criminal conduct by membersof that gang... .” (§ 186.22, subd.(a).) The jury could reasonably infer from his behavior that both were,in fact, the case. Mota cites People v. Duran (2002) 97 Cal.App.4th 1448 (Duran) and People v. Godinez (1993) 17 Cal.App.4th 1363, disappoved on other grounds in People v. Russo *3 Althoughthe fight occurred after the charged crimes, post-crime evidence may constitute circumstantial evidence of a defendant’s intent at the time the charged crimes were committed. (People v. Johnson (1993) 6 Cal.4th 1, 36, overruled on another ground in People v. Rogers (2006) 39 Cal.4th 826, 879 [intent to steal can be proven circumstantially by post-crime actions]; People v. Abilez (2007) 41 Cal.4th 472, 508 [same].) 54 (2001) 25 Cal.4th 1124, 1134, for the proposition that “[c]rimes occurring after the charged offense cannotserve as predicate offenses to prove a pattern of criminal gang activity.” (Duran, supra, 97 Cal.App.4th at p. 1458.) These cases are of no assistance to Mota, however, because this evidence was not offered to establish a predicate offense. Rather it went to whether he was a gang member whenthe crimes were committed and his intentions in committing these crimes. With regard to Mota’s Evidence Code section 1101, subdivision (b) argument, ‘Tc]ase law holds that where evidence of gang activity or membership is important to the motive,it can be introduced even if prejudicial. [Citations.]” (People v. Martin (1994) 23 Cal.App.4th 76, 81; People v. Olguin (1994) 31 Cal.App.4th 1355, 1369 -1370.) Given that evidence of the circumstances and nature ofthis fight were directly relevant to Mota’s motivation for committing the charged crimes, we find noerror. J. Prosecutorial Misconduct 1. Absence ofEvidence ofBlood in Mota’s Car Menendeztestified that, while he was in Mota’s car in mid-April 2008, he shot himself in the leg, causing significant bleeding. About a month later, Mota’s car was examined bythe police. This examination yielded no physical evidence to corroborate Menendez’s story: no blood, bullets or fingerprints were found. The car contained a child seat and other baby items. Mota’s counsel argued, during closing argument, that because there was no evidence of a gun-inflicted injury in Mota’s car, Menendez had lied when hetestified about this incident. Specifically, counsel told the jury that Mota’s car “was seized, it was searched, and what was foundin the car? Absolutely no blood. Not a single drop of blood. [J] No forensic evidence whatsoever, despite the car’s having been seized and thoroughly searched. Not a drop of blood.” Defense counsel went on: “And weall know you can’t clean up blood. Andif you try to clean it up, you leave traces of chemicals.” The prosecutor objected on the ground that these were facts not in evidence. The trial court sustained this objection, pointing out that defense counsel’s assertion that an 55 effort to clean up blood leaves chemicaltraces,“is not either common knowledgeor in evidence.” | The prosecutor responded to defense counsel’s argument regarding the absence of evidence of any blood from Menendez’s self-inflicted wound. Hetold the jury that after Mota dropped Menendezoffat the hospital, it “makes sense that he [Menendez] went to go cleanit.” The court overruled defense counsel’s objection that there was “no evidence of that.” The trial court noted that the generalrule that “[c]ounsel are permitted to ask that the jury draw inferences from the evidence presented... .” Defendants now arguethat the prosecutor committed misconduct when he suggested that the reason there was no bloodin the back of the car might have beenthat Mota cleaned up the blood. Wereject this argument. “The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘ “A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregiousthatit infects the trial 3°99with such unfairness as to make the conviction a denial of due process.’ (People v. Gionis (1995) 9 Cal.4th 1196, 1214; People v. Espinoza (1992) 3 Cal.4th 806, 820.) Conduct by a prosecutorthat does not render a criminal trial fundamentally unfair is prosecutorial misconduct understate law only if it involves “ ‘ “the use of deceptive or 39°35 99 reprehensible methodsto attempt to persuade either the court or the jury. (Peoplev. Espinoza, supra, 3 Cal.4th at p. 820.)’ (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Regarding the scope of permissible prosecutorial argument, we recently noted * “ ‘a prosecutor is given widelatitude during argument. The argument may be vigorousas long as it amounts to fair commenton the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation maystate matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.’ [Citation.] ‘A prosecutor may “vigorously argue his case andis not limited to ‘Chesterfieldian politeness’ ” ’ [citation], and he may “use appropriate epithets ... .” [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 221; People v. Heishman (1988) 45 Cal.3d 147, 195- 56 196 (Heishman) [counsel “prohibited from stating or implying facts for which there is no evidence before the jury.”’].) The defense and the prosecutor presented the jury with different explanations for the lack of evidence of blood in Mota’s car. Neither was implausible. Certainly, when there is an injury, particularly a gunshot wound, one might expect to find blood where the injury occurred. Thefact that no blood was found in Mota’s carlendsitself to two inferences: that Menendez lied when he recounted the incident or Mota cleaned up the blood. Whatis important about both possibilities is that they amount to “‘ “fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.” ’” (People v. Williams, supra, 16 Cal.4th at p. 21 .) Noris it the case, as defendant argues, that in asking the jury to infer that Menendez had cleanedthe blood off the seat of his car, the prosecutor stated or implied facts “for which there is no evidence before the jury.” (Heishman, supra, 45 Cal.3dat p. 195.) In Heishman, our Supreme Court found that the where a prosecutor implied a conclusion based on evidencein the record, no misconduct took place. As in Heishman, the prosecutor's argument wasbased on the facts before the jury—here,the fact that the car was devoid of blood. Wealso reject defendant’s argumentthat his Fifth and Fourteenth Amendment rights to a fair trial and due process were violated becausethetrial court sustained the prosecutor’s objection to his statement regarding the chemical byproducts of cleaning up the blood, and overruled his objection in which the prosecutor suggested Menendez had cleaned the blood off the seat. The two statements were not “equivalent,” as defendant contends. Nordid thetrial court err whenit allowed one and notthe other. 2. Disparagement ofDefense Lawyer During Rebuttal Mota also arguesthat the prosecutor disparagedhis truthfulness andintegrity during rebuttal closing argument. In the first alleged instance, the prosecutor told a story his grandfather, a farmer, told about a lawyer who washis neighbor. The farmer observed one day that the rope tying the goat in the lawyer’s yard had been chewed through and the farmer’s rose bushes 57 had been eaten. The farmertold the lawyerthat the lawyer’s goat had eaten his rose bushes. The lawyer told the farmer “It wasn’t my goat. I don’t have a goat. []] If I do have a goat, it didn’t eat your roses. [{] If I do have a goat andit did eat yourroses,it’s because the rose bushes made them eat the roses. [{] If I do have a goat andit did eat yourroses .. . then the goat was insane.” The prosecutor told the jury that this story illustrated that his grandfather “wasn’t that happy that I was going to be a lawyer. Andthe point is, ladies and gentlemen, what are we here for? [§] Are we here for thetruth, or are we here just to throw everything out? What did you just hear from the defense for Mr. Mota? [{] Well, ladies and gentlemen, you heard the following things: And it wasn’t stated explicitly to you because [defense counsel] didn’t want to come out andsay that. [§]] How many defenses are there for Mr. Mota? I don’t get it. My client wasn’t there. He may not have been there for the 2-16 and 4-26 of 08 killings. [§] Ifmy client was there, he didn’t know what these guys were going to do. [9] If my client was there and he did know what they were doing, and it wasn’t self-defense, it was imperfect self-defense so he is only guilty of voluntary manslaughter. [§] If my client was there and he did know what they were doing andit wasn't self-defense or imperfect self-defense, then the bullets fired by Javier Gomez did not actually kill Rico McIntosh because you heard defendant Mota’s attorney cross- examinfe] Mr. Ogan extensively. . . . [§] If my client was there and he did know what they were doing and it wasn’t self-defense or imperfect self-defense, and you do believe the bullets fired by Gomez actually killed Mr. McIntosh, then myclientis only guilty of lesser-included offenses that aren’t on the verdict forms, so heis not guilty.” In telling this story, the prosecutor did not commit misconduct. Pointing out the inconsistencies and implausibilities of an opponent's argumentis not an attack on the opponent’s personalintegrity. (People v. Medina (1995) 11 Cal.4th 694, 759, People v. Gionis, supra, 9 Cal.4th at pp. 1217-1218.) Similarly permissible was the prosecutor’s characterization of defense counsel as a magician trying to trick the jury. In People v. Medina, supra, 11 Cal.4th at page 759,the court found that the prosecutor did not demean defense counsel’s integrity when he told 58 the jury that “ ‘any experienced defense attorney can twist a little, poke little, try to draw somespeculation, try to get you to buy something... .’” The Medina court observed that“the prosecutor’s . . . argument was unobjectionable. To observe that an experienced defense counsel will attempt to ‘twist’ and “poke’ at the prosecution’s case does not amountto a personal attack on counsel’s integrity.” (See also People v. Gionis, supra, 9 Cal.4th at pp. 1217-1218.) Accordingly, we find no prosecutorial misconduct and reject defendants' argument. K. Substantial Evidence ofMurder and Conspiracy Elizalde was charged with conspiracy to commit murder and murder. The People characterized Elizalde as the conspirator who “stay[ed] home. . . and [did] nothing, but... started the design or agree[d] to the conspiracy ....” The People told the jury that the testimony of Ruelas, Sanchez and Cervantes showedthat Elizalde “was leading a charge to attack rival gang membersto bring the hood back.” The People’s theory was that the conspiracy to commit murder in which Mota and Elizalde participated hadasits object the killing of rival gang members andthe deaths of Centron, Perez and McIntosh were, therefore, the “natural and probable consequencesof a conspiracy... .” Elizalde now argues that substantial evidence does not establish that the murders of Centron, Perez and McIntosh were a foreseeable consequence of a conspiracy in which Elizalde and Motaparticipated.** Wedisagree. * Elizalde also contends that the only evidence supporting his convictionsis the uncorroborated testimony of accomplice witnesses. As we have previously held, four of the witnesses whotestified regarding Elizalde’s participation in a conspiracy that led to the murders of Centron, Perez and McIntosh werenot, in fact, accomplices as a matter of law. Moreover, viewed in a light most favorable to the verdicts, the jury could have easily found that Valencia, Menendez, Cervantes and Ruelas were not accomplices and, thus, no corroboration was required. Finally, even if these witnesses were in fact accomplices, their testimony was adequately corroborated. 59 1. General Principles In People v. Johnson (2013) 57 Cal.4th 250, 257, our Supreme Court recently explainedthat “[s]ection 182 prohibits a conspiracy by two or more people to “commit any crime.” (§ 182, subd. (a)(1).) ‘A conviction of conspiracy requires proofthat the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission ofan overt act “by one or more ofthe parties to such agreement”in furtherance of the conspiracy.’ [Citations.]” “[I]it has long been established that direct evidence is not required to prove a common unlawful design and agreement to work toward a common purpose; the existence of a conspiracy may be inferred as well from circumstantial evidence. [Citations.]” (People v. Buckman (1960) 186 Cal.App.2d 38, 46-47; People v. Calhoun (1958) 50 Cal.2d 137, 144.) To the extent that a particular crime could be said to be “unplanned,” a conspiratoris responsible for it if it was a reasonably foreseeable consequenceof the conspiracy. “Whether the unplannedact was a ‘reasonably foreseeable consequence’ of the conspiracy must be ‘evaluated underall the factual circumstances ofthe individual case’ and‘is a factual issue to be resolved by the jury’ [citation], whose determination is conclusive if supported by substantial evidence.” (People v. Zielesch (2009) 179 Cal.App.4th 731, 739-740.) 2. Substantial Evidence of Conspiracy Ourreview of the record indicates that substantial evidence supports the jury’s conclusion that (1) Elizalde conspired with Motato reestablish Varrio Frontero Locoby, amongother things, murdering rival gang members and (2) the deaths of Centron, Perez and McIntosh werethe natural and probable consequenceof that conspiracy. Officer Brady of the San Pablo Police Departmenttestified as a gang expert that in late 2007 and early 2008, Varrio Frontero Loco and the Mexican Locos were beginning to “clique up” together. Based on several murders that occurred as well as informant information, he believed that Gamaliel Elizalde was the “head shot-caller” of Varrio Frontero Loco. The gang wasrecruiting members and committing murders. He believed 60 Elizalde and other members of Varrio Frontero Loco were attempting to “reestablish the gang.” Sancheztestified that in the year leading up to the murders of Centron, Perez and McIntosh, Elizalde was the leader of Varrio Frontero Loco. The gang was on the decline—memberswere being hurt andterritory was disappearing. To counteract this state of affairs, Elizalde, along with Sanchez, Mota, Ruelas, and others, began to recruit new members. They also embarked on a campaign to “do more damageto the Nortefios.” Elizalde encouraged Varrio Frontero Loco members to makesure that the Nortefios were aware that they were a present and powerful force by going into Nortefio territory to beat up or shoot anyone who appeared to be a Nortefio. Menendez confirmed that this was, indeed, the understanding of the Varrio Frontero Loco members who “wanted to get rid of Nortefios.” Although Menendez wasnotsure, he believed that Elizalde was the “shot-caller.” Ruelas confirmed Menendez’s suspicion regarding Elizalde’s role in the Varrio Frontero Loco. Ruelasalso testified that Molina told him that they were “bringing the hood back” and violence against rival gang members was an importantpart ofthis effort. In addition to substantial evidence that Elizalde wasa significant player in a conspiracy to re-establish Varrio Frontero Loco as a powerful gang through violence— including murder—against Nortefios, substantial evidence also supports the jury’s conclusion that the deaths of Centron, Perez and McIntosh were the foreseeable consequenceof the conspiracy to “bring[] the hood back.” Centron, Perez and McIntosh were targeted because they appeared to be Nortefios, the principal target of the Varrio Frontero Loco. Elizalde’s argument that these murders were not foreseeable because the victims were outside Richmond, which wasthe area claimed by the Surefios, makeslittle sense. San Pablo was well knownto be Nortefio territory. Given that the Varrio Frontero Loco conspired to kill Nortefios, they would generally do so in San Pablo, rather than Richmond. The jury’s verdict, therefore, is supported by substantial evidence. 61 L. Telephone Conversations Between Molina and His Mother Elizalde contendsthat portions of two telephone conversations—mainly between Hector Molina (who wasinjail at the time of the conversations) and his mother—butalso in one instance involving Elizalde, were improperly admitted under Evidence Code section 1223’s co-conspirator’s hearsay exception. We disagree. 1. Factual Background In the first of the two telephonecalls, both of which occurred while he was incarcerated at the Martinez Detention Facility, Molina told his mother to contact Elizalde (Gama) andtell him “that they got me in.” Hector’s motherreplied, “[bJut you didn’t do it, if you didn’t doit!” and he replied “Well, yes, it was me. They already know.” He told his mother to “Tell [Elizalde]. Ask [Elizalde] to help you. [Elizalde] can help you. [Elizalde] will give me moneyas well. Tell [Elizalde] I’ve told him to send me money.” Molina asked his motherto place a “three way”call to Elizalde. When Elizalde did not answer, Molina left a messagetelling Elizalde that “they got me for murder” and that “I need you to take care ofmy family .. . [t]ake care of my mama... .” In the second call, Molina’s mother told him that Elizalde brought her $50. She also told him that Elizalde told her that Molina “should say no, no, no, I didn’t doit, it couldn’t have been me. I didn’t do anything. To keep your word, and no,no, no.” Molina’s mother placed another three waycall to Elizalde. This time, Elizalde answered. Heinstructed Molina, “whatever happened, you—yousay that you don’t know, okay man?” Molina responded, “Yeah, man.” Elizalde then said “On your own, man, no. Just tell them no, you don't know andthey can’t get you outofthat.” Elizalde sought to have evidence of these phonecalls excluded on hearsay grounds. The People argued that they were admissible under the co-conspirator exception to the hearsay rule pursuant to Evidence Code section 1223. Thetrial court found that the People had “clearly madea primafacie case that the conspiracy described in the indictment existed. That the conspiracy was on-going in February and March of 2008 at the time of the phone calls. That Mr. Elizalde was a leader ofVFL or a shot- caller for VFL and that Mr. Mota was a memberofthe conspiracy. And that Mr. Gomez 62 wasalso a memberofthe conspiracy.” The court pointed out that Gomez’s confession “can be considered as part of the prima facie case of his membership in the conspiracy.” AsSurefios, the “co-conspirators lived under a numberofrules that are relevant to this analysis. [§] First, is never cooperate with police. Never give a confession. Never give a statement. Never agreeto testify. If you are arrested, fellow gang members will put money on your booksto help you buythings in the jail which enables you to be more comfortable and to increase your influenceat the jail. [{] The Surefios in the jail were required to contribute money or buy things for other Surefios in custody. And then Surefios in custody werestill required to assault Nortefios at every opportunity. [{] So the culture of attacking rival gang membersdid not stop upon arrest.” The court found that Molina was released following his arrest after the Centron murder and “within days” he “immediately returned to the active participation in the conspiracy. Just an indication that mere arrests [of conspiracy members] does not necessarily put their participation in the conspiracy at end.” The court did, however, redact numeroustelephone conversations in which Molina was“talking about his general welfare and that sort of thing.” 2. Discussion Defendant arguesthat thetrial court erred whenit found that the conspiracy was ongoing. He contends that because Molina had already been arrested whenthe telephone calls were made, the court could not conclude that he was involved in an ongoing conspiracy. Wereviewthetrial court’s ruling under the abuse of discretion standard and will not disturb it on appeal unless it was exercised in a mannerthat wasarbitrary, capricious, or patently absurd and that resulted in a miscarriage ofjustice. (People v. Rowland (1992) 4 Cal.4th 238, 264.) The trial court did not abuse its discretion in admitting the excerpts from these telephonecalls. Evidence Codesection 1223 provides that “a statement offered against a party is not made inadmissible by the hearsayrule if: [§] (a) The statement was madeby the declarant while participating in a conspiracy to commit a crimeor civil wrong and in 63 furtherance of the objective of that conspiracy; [{] (b) The statement was madepriorto or during the timethat the party was participating in that conspiracy; and [{] (c) The evidenceis offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions(a) and (b) or, in the court’s discretion as to the order of proof, subject to the admission of such evidence.” Asthe proponent of the evidence, the People were required to “offer evidence sufficient for the trier of fact to determine that the preliminary fact, the conspiracy,is morelikely than not to have existed.” (People v. Herrera (2000) 83 Cal.App.4th 46, 61.) The Herrera court explains that “[a] conspiracy exists when one or more persons have the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act by one or moreofthe parties to such agreementin furtherance of the conspiracy. [Citations.] These facts maybe established through the use of circumstantial evidence. [Citations.] They mayalso ‘ “be inferred from the conduct, relationship,interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.]” ’ [Citations.] [{] Once the existence of the conspiracy has been independently established, the offering party must then make three additional showingsin order for the content of the coconspirator’s statement to be considered bythe trier offact. That party must show:(1) that the declarant (who may or maynotbe the defendant) was participating in a conspiracyat the time of the declaration;(2) that the declaration was madein furtherance of the objective of the conspiracy; and (3)that at the time of the declaration the party against whom the evidenceis offered was participating, or would later participate, in the conspiracy. [Citations.]” (Ud. at pp. 64-65.) Weturn nowto this case. The court had before it evidence that when the telephone calls were made—in February and Marchof2008—Elizalde, who wasnotin custodyat the time, was the shot caller for Varrio Frontero Loco. Even in custody, a Surefio like Molina adhered to rules of behavior established by the gang. Asthetrial court putit: “First, is never cooperate with police. Never give a confession. Nevergive a statement. Neveragreeto testify. If you are arrested, fellow gang members will put money on your 64 books to help you buythingsin the jail which enables you to be more comfortable and to increase your influenceat the jail. [§] The Surefios in the jail were required to contribute moneyor to buy things for other Surefios in custody.” Contrary to defendant’s argument that the conspiracy amongthe parties to attack Nortefios ended when Molina was arrested, the court found that “Surefios in custody werestill required to assault Nortefios at every opportunity. [{] So the culture of attacking rival gang members did not stop uponarrest.” In fact, when Molina wasreleased following his arrest after the Centron murder, “within days” he “immediately returned to the active participation in the conspiracy. Just an indication that mere arrests [of conspiracy members] does not necessarily put their participation in the conspiracy at end.” This evidence wassufficient to support a finding that it was more likely than not that Molina and Elizalde were participants in a conspiracy whenthe telephonecalls were made and, therefore, the telephone calls were properly admitted. M. Ineffective Assistance ofCounsel | The short answer to Elizalde’s argument that counsel was deficient for failing to object to the admission of these telephonecalls is that because (as we previously found) this evidence was admissible, any objection would have been unavailing and,thus, the failure to object did not constitute ineffective assistance of counsel. (People v. Frye (1998) 18 Cal.4th 894, 952, overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) N. Ruelas’s MySpace Post Luis Ruelastestified that he posted a message on his MySpacepagein orderto wam gang members not to harm his family. The gist of the message wasthat if gang members “touch my family their family can be touched, too.” The post read as follows: “but dis goes to all da lil homies, stop listening to da big homies, they dnt give a fuck bout yalil niggas, dnt listen to Stranger, dat nigga is a nobody in VFL. Just cus hes close to Gama dnt mean shit. He never did no,jales .. . and Gamajust uses ya to take care of his shit. He dnt give a fuck bout ya.” He posted that the true members of VFL were 65 “Sleepy, Richy, Toby, Ruelas, Camacho,all da other VFLs except da pee wees are fucken suckas niggas.” Thetrial court instructed the jury pursuant to CALJIC No. 3.13 that “Tt]he required corroboration ofthe testimony of an accomplice may not be supplied by the testimony ofany orall of his accomplices, but must come from other evidence.” Elizalde argues that the instruction wasincorrect because the jury could have understoodit to mean that Ruelas’s accomplice testimony could be corroborated by his MySpace post because that post might be considered “non-testimonial.” Even if Elizalde had not forfeited this claim because he did not object or request a modification to the instruction, his claim is without merit. We do not agree that the instruction could be construed as permitting the jury to use the MySpace post as corroboration. The languageofthe instruction is broad enough to encompassthis particular communication. The instruction, therefore, did not violate his Sixth Amendmentright to make a defense. (Estelle v. McGuire (1991) 502 U.S.62, 72.) O. Elizalde’s 2007 Methamphetamine Incident Aspart of its showing of a predicate offense for the gang charge and gang enhancements, the People put in evidence of an incident involving Elizalde’s 2007 possession of methamphetamine for sale. Elizalde objected to the admissionofthis evidence under Evidence Codesection 352. He argued then, as he does now on appeal, that the evidence was cumulative and moreprejudicial than probative. Thetrial court did not abuse its discretion in admitting the evidence. At trial, two police officers testified that they searched Elizalde’s home on July 18, 2007. During that search, the officers discovered trail of white crystals, which were later identified as methamphetamine, leading from a bathroom to where Elizalde was standing. In addition,the officers found the same white crystals around the top of the toilet bowl rim, on the floor of the bathroom, and on Elizalde’s abdomen. Theofficers also found indicia that Elizalde was selling drugs. These included small Ziploc baggies, a digital scale, $755 cash in Elizalde’s pocket and “pay/owe”sheets. Oneoftheofficers, who was qualified as an expert on the possession ofnarcotics for sale testified that in his 66 opinion Elizalde possessed methamphetaminefor sale and flushed it downthe toilet. Elizalde was arrested for possession of narcotics for sale and ultimately was convicted of only possession. Thetrial court admitted evidence of Elizalde’s conduct on this occasion to meet the predicate crime requirements, finding that “the probative value is very high because they are legitimate proof of essential elements of the crime and enhancements.” With regard to the prejudicial effect of this evidence, the court found that although the prejudicial effect of the evidence wassubstantial, a limiting instruction could mitigate that effect.*° Thetrial court did not abuseits discretion in admitting this evidence. Our Supreme Court recently considered a similar objection to gang evidence admitted to prove a predicate offense under section 186.22. The court explained that, in contrast to evidence admitted under Evidence Codesection 1101 to show intent, motive or modus operandi, in which “ ‘evidence is probative because ofits tendency to establish an intermediaryfact from whichthe ultimate fact of guilt of a charged crime may be inferred. [Citations.]’ In prosecutions for active participation in a criminalstreet gang, the probative value of evidence of a defendants gang-related separate offense generally is greater becauseit provides direct proof of several ultimate facts necessary to a conviction. Thus, that the defendant committed a gang-related offense on a separate occasion provides direct evidence of a predicate offense, that the defendant actively participated in the criminal street gang, and that the defendant knew the gang engaged in a pattern of criminal gang activity.” (People v. Tran (2011) 51 Cal.4th 1040, 1048.) Not *> The court did indeed give the jury limiting instructions regarding this evidence. After the two officers who searched Elizalde’s housetestified, the court instructed the jury that their testimony regarding Elizalde’s possession of methamphetaminefor sale was admissible only with regard to the gang count and gang enhancements. The court warnedthe jury that the evidence was “not admissible to suggest the Mr. Elizalde . . . has a bad character or a propensity to commit crimes, buy only on the predicate act elements of the gang charge and the gang enhancements ....” At the end of thetrial, the court instructed the jury on the use of evidence that was admitted for a limited purpose (CALJIC No. 2.09) and evidence of other crimes (CALJIC No. 2.50). 67 only is such evidence highly probative, but its prejudicial effect is comparatively weaker: “(T]he inherent prejudice from a defendant’s separate gang-related offense typically will be less when the evidence is admitted to establish a predicate offense in a prosecution for active participation in a criminal street gang, than whenit is admitted to establish an intermediary fact from which guilt may be inferred. ‘Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant with verylittle effect on issues, not evidence that is probative of a defendant’s guilt.’ [Citations.] As we explained in People v. Doolin (2009) 45 Cal.4th 390: ‘ “The prejudice that section 352 ‘ “is designed to avoidis not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” [Citations. ] “Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors.” ’ ”’ (/d. at p. 439.) That the evidence provided direct evidence of someofthe elements of the prosecution’s case thus does not weigh against its admission. In addition, because the prosecution is requiredto establish the defendant was anactiveparticipant in a criminal street gang and had knowledge of the gang’s criminalactivities, the jury inevitably and necessarily will in any event receive evidence tending to show the defendantactively supported the street gang’s criminal activities. That the defendant was personally involved in some ofthose activities typically will not so increase the prejudicial nature of the evidence as to unfairly bias the jury against the defendant. In short, the use of evidence of a defendant’s separate offense to prove a predicate offense should not generally create ‘an intolerable “risk to the fairness of the proceedingsorthe reliability of the outcome.” ’ [Citation.]” (People v. Tran, supra, 51 Cal.4th at p. 1048.) The Tran court also addressed the contention Elizalde makes that evidence ofhis possession of narcotics for sale was cumulative of the evidence of other predicate offenses offered by the prosecution. “Defendant argues that evidence of a defendant’s separate offense on another occasion should not be admitted whenit is ‘cumulative.’ By this he seems to mean that the evidence should not be admitted when the prosecution has the ability to develop evidence of offenses committed on separate occasions by other 68 gang members. But defendantcites no authority for the argumentthat the prosecution must forgo the use of relevant, persuasive evidence to prove an elementof a crime because the element might also be established through other evidence. The prejudicial effect of evidence defendant committed a separate offense may, of course, outweighits probative valueif it is merely cumulative regarding an issue not reasonably subject to dispute. [Citations.] But the prosecution cannot be compelled to ‘ “present its case in the sanitized fashion suggested by the defense.” ’ [Citation.] When the evidence has probative value, and the potential for prejudice resulting from its admission is within tolerable limits, it is not unduly prejudicial and its admissionis not an abuseofdiscretion. Further, a rule requiring exclusion of evidence of a defendant’s separate offense on the theory the prosecution might be able to produce evidence of offenses committed by other gang members would unreasonably favor defendants belonging to large gangs with a substantial history of criminality. That the prosecution might be able to develop evidence of predicate offenses committed by other gang members therefore does not require exclusion of evidence of a defendant’s own separate offense to show a pattern of criminal gang activity.” (People v. Tran, supra, 51 Cal.4th at pp.1048-1049.) In our view, the evidence of Elizalde’s conduct on this occasion was not so prejudicial as to preclude its admission. The jury had before it evidence of numerousacts of violence committed by Elizalde and, in that context, evidence that he possessed methamphetaminefor sale can hardly be considered sufficiently prejudicial to outweigh its substantial probative value. P. Ineffective Assistance ofCounsel For Failure to Object to “Other Crimes” Evidence Elizalde argues that counsel was ineffective because he did not object to the introduction of evidence of Elizalde’s role in a numberof crimes. He contendsthatthis evidence was “devastating,” and therefore counsel’s failure to object violated the Sixth Amendment. The evidence to which counsel did not object was: (1) testimony that Elizalde directed Sanchez and Ruelasto kill a surviving witness to the Centron shootings; (2) 69 evidence that “Weasal” who was a Varrio Frontero Loco shot caller from prison ordered Elizalde to kill an informant and that although Elizalde did not wantto do so, he sent someone to burn the informant’s house down;(3) the fact that Elizalde kepta hitlist of people whom he wantedkilled and kept a stash of gunsat his brother-in-law’s house; (4) Ruelas’s description of an incident in which Elizalde asked Ruelas to kill someone who had slashed his tires; and (5) Ruelas’s opinion that Elizalde was killing people “for no reason” and that he tried to persuade Elizalde to stop ordering so many shootings. This evidence was highly relevant to establish Elizalde's position as the Varrio Frontero Locoshotcaller and his participation in the conspiracy to kill Nortefios. Moreover, given the amount of evidence of similar activity on Elizalde’s part it was not more prejudicial than probative under Evidence Codesection 352. Any objection counsel might have maderegarding the admission of this evidence would have been unavailing. In that case, the failure to object does not constitute ineffective assistance of counsel. (People v. Frye, supra, 18 Cal.4th at p. 952.) Q. Cumulative Error (Elizalde) Elizalde contends cumulative error in this case rises to the level of reversible and prejudicial error. (People v. Hill (1998) 17 Cal.4th 800, 844, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) We disagree. The single error in this matter regarding the admission of Mota's booking statement cannot amount to cumulative error because, along with being the sole errorin this case, it was harmless. IV. DISPOSITION The judgments are affirmed. 70 Haerle, Acting P.J. Weconcur: Richman,J. Brick, J.* * Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuantto article VI, section 6 of the California Constitution. 71 DECLARATION OF SERVICE Re: People v. Elizalde, etal. No. A32071 I, John Ward, declare that I am over 18 years of age, and not a party to the within cause; my employment address is 584 Castro Street, #802, San Francisco, California 94114. I served a true copy ofthe attached: PETITION FOR REVIEW TO EXHAUST STATE REMEDIES on each of the following, by placing same in an envelope (or envelopes) addressed (respectively) as follows, or, where permitted or required, by electronic service: Office of the Attorney General District Attorney, Contra Costa County by e-service 900 WardStreet Martinez, California 94553 FDAP by e-service Clerk, Superior Court 725 Court Street Mr. Javier Gomez, G05713 Martinez, California 94553 for delivery to Judge Kennedy Stephen B. Bedrick 1970 Broadway, Ste. 1200 Court of Appeal, First Appellate District Oakland, California 94612 Division Two by e-filing Solomon R. Wollack P.O.. Box 23316 Pleasant Hill, California 94523 Each envelope was then on December 16, 2013 sealed and deposited with the United States Postal Service at San Francisco, California, in the county in which I am employed, with the priority postage thereon fully prepaid, or electronically served.I declare under penalty ofperjury that the foregoingis true and correct. Executed at San Francisco, California, on December16, 2013. s/John Ward